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October 2, 2007

Am I foolish to dream about consensus in Gall and Kimbrough?

As I eagerly await the transcripts of the Gall and Kimbrough arguments to be available here this afternoon, I cannot help but dream about the Justices finding their way in these cases to some consensus on post-Booker sentencing standards.  I am driven to dream in part by this spot-on commentary by Benjamin Wittes at the New Republic lamenting the Court's recent divisiveness.  Here are snippets:

Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court's institutional capital.... But it's hard to identify important areas in which the court [last term] spoke with a strong voice that rose above the polarized views of its members.  The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted.  And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle....

[N]ow it's a new day and a chance to start over.  And who knows?  A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them.  But I'm not holding my breath.  And I'm not excited about watching them try.

Of course, when addressing Sixth Amendment issues, the Court has been deeply divided for a decade now, and the new Justices have not yet been able to quell to squalling.  However, Gall and Kimbrough ultimately have more to do with judicial discretion and appellate review than with the Sixth Amendment, and back in 1996 the Court came together in Koon to deliver a unanimous ruling (per Justice Kennedy) that embraced broader district court sentencing discretion and light appellate review.  I think there is a real chance that the Court might find consensus in these principles again.  (But, then again, a few weeks ago I also thought there was real chance the Mets and Padres would be gearing up for the MLB playoffs right now.)

October 2, 2007 at 12:51 PM | Permalink

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