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July 29, 2004

Wasting no time, DOJ replies...

Proving how fast he can move, the Acting Solicitor General, less than 24 hours since the defendants' filings, has now submitted a Reply Brief for the US in the Fanfan and Booker cases. Here are all 21 pages of the reply, as well as a (mercifully brief) "Motion to Exceed the Page Limit," for your reading pleasure (with commentary soon to follow):
Download doj_booker_fanfan_reply_brief_in_support_of_petitions.pdf
Download doj_booker_fanfan_motion_to_exceed_pages.pdf

UPDATE: Lyle Denniston over at the SCOTUSBlog already has a thorough account of the SG's filings here. This post is a reminder that we are really just getting started on what is likely to be a very long Blakely roller-coaster ride.

ADDITIONAL UPDATE: The SG's reply brief is another wonderful read. The legal analysis is impressive and all the counter-punching is very amusing. Of course, in the end this all seems like shadow-boxing: what is unstated in all the briefs is that, as a matter of pure legal doctrine, the vehicles chosen for Supreme Court review probably do not matter very much at all. But, as a matter of case equities and expected public dialogue, the vehicles chosen for Supreme Court review matter a whole lot. The SG principally wants Fanfan because, in my view, the defendant in that case is far less sympathetic than Bijou. Indeed, the NACDL is pushing Bijou because, in my view, it much more starkly highlights the potential injustices of the "old rules."

As I discussed before here, the fact that the Supreme Court used the Rodney King case as its vehicle for discussing departure authority in Koon v. US --- not to mention its troubling decision in US v. Watts, 519 U.S. 148 (1997), to use a summary reversal per curium opinion to approve the use of "acquitted conduct" in federal sentencing, cf. Watts, 519 U.S. at 170 (Kennedy, J., dissenting) --- suggests that SCOTUS clearly cares about how its decisions look in the headlines as well as in the law books. But what exactly that legal realist fact means for these cases is anyone's guess.

STILL FURTHER UPDATE: I have just received the SG's opposition to cert. in Bijou and Pineiro, as well as now the SG's reply brief on the motion to expedite. Here they are:
Download bijou_opp_nina.pdf
Download pineiro_opp_nina.pdf
Download doj_motion_to_expedite_reply.pdf

July 29, 2004 at 01:48 PM | Permalink


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