An unfair SCOTUS fight?

I have now finally finished reading the respondents' briefs in Booker and Fanfan (available here), and I my first reaction is to feel sympathy for the lawyers in the Department of Justice and the Office of the Solicitor General. They have to finish the Government's reply brief by tomorrow, and there are so many of their arguments which are now in desperate need of a rigorous defense.

Indeed, the SCOTUS fight now almost seems unfair: the SG is stuck with the weaker arguments on the merits — at least that's my view as suggested here and here and here — and now it faces a double-barreled assault on its arguments from two effective and distinctive briefs filed on behalf of defendants Booker and Fanfan. And the Governments' lawyers also have to work through, and decided whether to respond to, some of the interesting and diverse points made in the interesting and diverse amicus briefs filled in support of the respondents. (These amicus briefs are available here and I have discussed them collectively here and here. In addition, Jason Hernandez at the Blakely Blog has started his ambitious plan for discussing these briefs, as he now has a full CliffsNotes version of the FAMM brief here.)

I have already written at length about the SG's arguments that the federal guidelines should be exempt from the Sixth Amendment because of their administrative nature (see generally posts here); I do not think much more needs to be said about the claim that the Fanfan brief states cleanly in its first heading: "Blakely applies to the federal sentencing guidelines." I will just note that both the Booker and Fanfan briefs, like all the amicus briefs, effectively debunk the fictions discussed here that seem essential to the SG's efforts to keep Blakely from applying to the federal guidelines.

Far more interesting, and worthy of a series of coming posts, are the arguments that the Booker and Fanfan briefs make concerning the issue of severability. Though I will be discussing "chaos" and "sentencing windfalls" in subsequent posts, I will here highlight that the briefs' severability discussion has confirmed some points made here and here and here about these issues. And, perhaps even more importantly, the severability discussion in the briefs now have me convinced that the SG's proposed "advisory guidelines" remedy would actually be more disastrous for courts (and even prosecutors) than for defendants.