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September 28, 2004

Gearing up for SCOTUS oral argument

Yesterday the Supreme Court issued this intriguing order concerning oral argument time in Booker and Fanfan:

The motion of respondents for divided argument is granted. Each counsel must be prepared to discuss both questions presented. The motion of Ad Hoc Group of Former Judges for leave to participate in oral argument as amici curiae and for divided argument is denied.

Thus, Judge Martin will not have a chance to expound upon his strange claim (discussed here) that the federal guidelines are "more analogous to the traditional indeterminate scheme" than to the guidelines system at issue in Blakely.

Meanwhile, Tony Mauro has a very interesting preview article (available here with subscription) at law.com entitled "Sentencing Tops High Court's New Term." The article includes a robust debate between legal ethics Professors Monroe Freedman and Steven Lubet about whether Justice Breyer ought to recuse himself because he helped to draft the federal sentencing guidelines as a member of the original US Sentencing Commission.

In addition, showing what a good reporter he is, Tony was able to "force" me and former SG Kenneth Starr to make these predictions about the likely outcome in Booker and Fanfan:

"The five justices in the Blakely majority really believe in it," says Berman. "It would be a stunning about-face if any of them said it does not apply to the federal guidelines."...

But former Solicitor General Kenneth Starr thinks the Court will recoil at the prospect of the turmoil such an outcome would trigger, with issues such as retroactivity likely to result in hundreds or thousands of sentencing appeals.

"This Court tends not to like disruptive movements," says Starr, now dean of Pepperdine University School of Law. Starr predicts a majority of the Court will find a way to uphold the federal guidelines.

Though I am not inclined to question the informed insights of a former SG, I cannot help but have two reactions to Ken Starr's comments: (1) how do we explain the Blakely decision itself if the Court does not like "disruptive movements"? and (2) does he and others realize, as I explained here, that the SG's proposed argument for upholding the federal guidelines could actually be a more disruptive and tumultuous ruling because of its impact on the retroactive application of Blakely in the states.

September 28, 2004 at 11:15 AM | Permalink


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I agree w/your prediction (& obviously disagree w/Starr's). Both Blakely & Apprendi were pretty "disruptive," so I don't think that point holds much water. Overturning any part of the FSG would be tumultuous (to say the least) because of the volume of cases that it would affect. On the flip side, failing to apply Blakely to the FSG would essentially rob all federal defendants of the federal constitutional rights extended to state defendants under Blakely. I think the majority believes that the turmoil caused by applying Blakely to the FSG is a cost that is greatly outweighed by the benefit of securing the constitutional rights of all affected defendants.

Thus, I think arguments against the application of Blakely to the FSG that cite to the large number of defendants who will be affected by such a decision actually emphasize a basis as to why Blakely should be applied to the FSG.

Posted by: Paul | Sep 29, 2004 11:23:03 AM

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