Updated

This wikilog article is a draft, it was not published yet.

by: Ryan • October 5, 2012 • no comments

Here it is.

An amendment to my head-counting post. First, Harris was a plurality opinion,and the essential concurrence was from Justice Breyer, who has been strongly anti-Blakely but apparently has said some things of late questioning the validity of Harris. Since he wasn't wedded to the plurality opinion in Harris, he might be a more likely candidate than Scalia to flip.

Here's a quote from the petition for cert:

Justice Breyer cast the deciding vote. He agreed with the dissent that no constitutional or even "logic[al]" distinction can be drawn between factual findings that raise sentencing minimums and those that raise sentencing maximums. Harris, 536 U.S. at 569. He concurred in the plurality's judgment, however, on the ground that he did not "yet" accept the Apprendi rule. Id. Eight years later, however, in considering United States v. O'Brien, 130 S. Ct. 2169 (2010), Justice Breyer suggested that the time has come to revisit Harris and to apply the Sixth Amendment to mandatory minimums, explaining that he continues to believe that "Apprendi does apply to mandatory minimums" and Apprendi has now been "the law . . . for some time." O'Brien, 130 S. Ct. at 2183 n.6 (Stevens, J., concurring) (quoting Justice Breyer's comment at oral argument). This Court did not reach the issue, however, because it ruled as a matter of statutory construction that the provision at issue was an element.

So, there are solid grounds to be optimistic.