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March 17, 2008


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I know it's another post, but I don't see how the "or ... increase the punishment" parenthetical fits with Harris (the 2002 Scalia-plus-the-Apprendi-dissenters, Breyer-not-really-buying-it case on mandatory-minimum sentences). Are you hoping it'll be overruled soon? Alito certainly doesn't seem inclined to do so, it doesn't seem a very Robertsy thing to do, and Scalia doesn't seem to have Thomas's inclination to admit mistakes. Almendarez-Torres has had five explicit votes against it since 2000, but has still survived.

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