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December 8, 2004

SCOTUS still struggling: the wait for Booker and Fanfan continues

Yet again, no news on the Supreme Court sentencing front: the Court did not hand down its decision in Booker and Fanfan today.  Sorry for all the false alarms; I am as disappointed and surprised as anyone that the Court has completed now seven decisions before being able to speak to the state of federal sentencing.  I continue to speculate that the Court is really struggling with the second severability issue (some background here).   

According to the SCOTUSblog folks here and Howard Bashman here, the only other possible date for the decision this year is Monday, December 13.  And, as noted before, perhaps even a longer wait is in store for us.  Whenever the decision comes out, I trust it will be worth the wait.

In the meantime, there are lots of other state and federal sentencing stories to share and discuss (and now the mysterious Milbarge, the "Weird Al" Yankovic for the sentencing world, has more time to write more great Blakely and Booker songs).

December 8, 2004 at 10:20 AM | Permalink

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» Will Booker-FanFan Come Down Today? from TalkLeft: The Politics of Crime
Law Prof Doug Berman at Sentencing Law and Policy reports today may be the day the Supreme Court issues its long-awaited post-Blakely decision on the Federal Sentencing Guidelines in the Booker and Fan Fan Cases. TChris, who argued the Booker... [Read More]

Tracked on Dec 8, 2004 12:58:51 PM

Comments

Here's a tealeaf for you. There were eleven argued cases during the Court's first session of the term. Booker/Fanfan was argued on the first day of that session.

The Court tends to dole out opinion-writing evenly. Thus, each Justice normally would be assigned one opinion per session, with a couple of Justices getting two. As Booker/Fanfan is such a blockbuster, it's probably the main opinion-writer's only assignment from the first session.

With today's decision in KP Permanent Make-Up, both Souter and Ginsburg have a published opinion from the first session. That leaves Stevens, Scalia and Thomas as possible authors of the Booker/Fanfan decision, assuming the Blakely five stay together.

I rate it a long-shot that such an opinion would be assigned to Justice Thomas. In close cases, he has often had trouble crafting an opinion that would hold five votes. That leaves Stevens and Scalia, with Stevens (as the senior Justice) getting to decide who writes the main opinion.

Stevens knows a landmark case when he sees it, and my guess is he tackled this one himself. Also, the Court tends to rotate the opinion-writing on a given topic, so that the case law doesn't have too much of one Justice's voice. Scalia wrote Blakely, so I'd say it's Stevens's turn.

Posted by: Marc Shepherd | Dec 8, 2004 11:36:42 AM

I don't think Thomas is a long-shot at all. It's true that the Court tends to rotate the opinion-writing on a given topic, but that practice also eliminates Stevens, because he was the author of Apprendi.

Posted by: InLeninsTombITakeMyCapOff | Dec 8, 2004 9:50:54 PM

Inmates at the federal level have me checking sites daily (morning,noon, and night) for the latest word on a Booker/Fanfan decision, attempting to clarify or dispel hopeful rumors. I
ve noticed you keep this site updated daily, please continue to do so, we are anxiously awaiting better news Monday Dec.13. What are the odds? If not Mon, it will be Jan 17, right?

Posted by: Dokes | Dec 8, 2004 11:32:02 PM

Inmates at the federal level have me checking sites daily (morning,noon, and night) for the latest word on a Booker/Fanfan decision, attempting to clarify or dispel hopeful rumors. I
ve noticed you keep this site updated daily, please continue to do so, we are anxiously awaiting better news Monday Dec.13. What are the odds? If not Mon, it will be Jan 17, right?

Posted by: Dokes | Dec 8, 2004 11:32:33 PM

We will know tomorrow (Friday) whether the Court will be issuing any opinions on Monday. If it will not be, or, in any event, if it does not issue Booker/Fanfan on Monday, then the next possible dates for decision are January 11th, 12th, 18th and 19th (and possibly 24th).

Posted by: Marty L. | Dec 9, 2004 10:31:42 AM

alas, the single post at ussc.blogspot.com may offer the reason why the Court has not yet ruled

Posted by: A. Non Emus | Dec 9, 2004 10:14:59 PM

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