Well, a glance at the Smylie Supreme Court docket shows that Indiana has still not filed the requested response to Smylie's cert. petition. That is puzzling to an outsider like me. Maybe it happens all the time.
Anyway, tomorrow is conference day for Smylie. I see over at SCOTUSBLOG that Smylie is not among the cases that the folks there think are likely to have cert. granted. If cert. were to be granted, I think I can easily see a relatively brief per curiam opinion more or less flatly saying that the Jones-Booker line of cases simply does not apply to discretionary consecutive sentencing. That would at least settle whatever uncertainty may be out there on the subject--which is not much.
An opinion saying that Blakely does apply to discretionary consecutive sentences I find much harder to imagine. First, the Court will almost necessarily become entangled in 20 years of state court interpretation of statutes that do not, themselves, require judicial fact-finding to support consecutive sentences. So it is not clear to me what possible clear general application a Smylie v. Indiana decision would have. Even if such a decision had some arguable general application to the Blakely-affected and Blakely-afflicted, it would not take much for courts elsewhere to distinguish, even plausibly, their consecutive sentencing schemes from Indiana's.
But second--and perhaps this is just another way of putting what was first--Jones, Apprendi, Ring, Blakely, and Booker share one striking feature, it seems to me: they are based on law and principles just about older than dirt. They are really quite straightforward cases that require no fancy dancing. (With respect to Booker, I am speaking of Justice Stevens' opinion.) One may disagree with the history or the result as, obviously, Justice O'Connor has repeatedly. But there is nothing complex, except in various entailments, about what the cases say or even why they say it. And I think that's why there have been five justices who have agreed five times now about the law and the principles involved.
A Smylie opinion applying Blakely to discretionary consecutive sentencing would not be simple; and I just doubt that the five votes would hang together when faced with any degree of complexity. One only has to look at Justice Ginsburg's departure for the Breyer remedial opinion in Booker to detect a definite fragility in the crystal.
I haven't a clue what a new Chief Justice Roberts will contribute to the debate or the vote. The uninteresting assumption has to be that he will fit more or less snugly into Chief Justice Rehnquist's now-missing place in the puzzle. I'm ready to be surprised.