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November 30, 2004

They're still not here: more waiting for Booker and Fanfan

The eagle still has not yet landed.  This morning the Supreme Court did not issue its opinion in the eagerly anticipated Booker and Fanfan.  All of us, and sentencing courts around the country, will just have to keep waiting.  According to this SCOTUS Blog post, there are only a few more days this year on which the Court is likely to issue opinions.  I am starting now to wonder whether we will see a decision before January (although I will surely keep crying wolf every time the Supreme Court announces an opinion is forthcoming).

Since now it appears that a decision in Booker and Fanfan has taken at least a full two months since argument in early October (and a full four months since the cert. grant in early August), it is hard not to speculate that the Court is struggling with the second severability issue (some background here).  Though this is a bit like making predictions based on how long a jury is out, I think we would have seen a pretty quick decision if there were five votes to keep Blakely from applying to the federal system.

November 30, 2004 at 10:18 AM | Permalink


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Jimmney Crickets-

I figured they would crank out the opinion after argument. Perhaps they are split and we are going to have an opinion that is very vague and subject to interpretation. Also, wonder how Rehnquist's illness is playing to the situation.

As a defense attorney, hard to give advice in fed-land with this situation.

Posted by: randall cavanaugh | Nov 30, 2004 10:25:00 AM

I think Prof. Berman is right: they're struggling with the remedy. It's not hard to explain that Blakely applies to the Guidelines. The difficulty is what to do about it, as evidenced in the many different solutions lower courts have adopted. Also, the opinion won't issue until all of the dissents and concurrences are finished, which means that, within reason, any Justice can hold up the entire decision.

I doubt that Rehnquist's illness is the issue. Rehnquist is almost certainly in the minority, and I doubt that he assigned himself the principal dissent.

Posted by: Marc Shepherd | Nov 30, 2004 10:49:52 AM

Good points all, though I wonder if Rehnquist could possibly be a swing vote on severability. I am growing fearful that we will get a fractured opinion, though perhaps the delay is the result of trying to craft a majority opinion which will garner more than 5 votes. Fun to speculate.

In the meantime, I hope to hear from folks about how sentencing courts and litigants are coping with continued delay.

Posted by: Doug B. | Nov 30, 2004 11:07:03 AM

A fractured opinion? On this Court? No... really? Just look at the opinion that WAS released today... the interpretation of an amendment to a provision of the Truth-in-Lending Act. Ginsburg looks at the words of the new act, finds them ambiguous and looks at the old act, the amendment, and the legislative history to come up with an interpretation. Stevens (probably in response to the Scalia/Thomas opinions) says "Yeah, let's have common sense interpreations considering every possible piece of evidence... and read my law review article!" Kennedy, in his usual middle-of-the-road way, says "Ginsburg was right but only because the text of the statute was ambiguous." Thomas says "Use statutory history before (or solely?)resorting to legislative history (especially when you're looking for negative inferences from the legislative history). Because Congress was not perfectly consistent with their use of words, the language is ambiguous. The statutory history, which agrees with Ginsburg's result, gives us our answer." Scalia says "don't confuse a bad result with ambiguity," attempts to destroy the majority's logic, and then (it seems to me) make his own "common sense" determination based on the text as written (the divisions in the subparagraph have to mean _something_, even if the text indicates that they don't). Everyone has to get his or her "last word" in on the appropriateness of stautory construction. It's really starting to tick me off. If the Court is unwilling to get along over something fairly minimal, like the statutory interpretation of whether there's a $1000 or $2000 statutory damages limit in a truth-in-lending violation (especially when 8 justices agree on the result), how can we expect any agreement on an issue as fundamental as how far the jury trial and burden of proof rights extend to finding facts related to a criminal's sentence.
Sometimes, I think it's time that this Court grow up, make some compromises, and begin to issue opinions with clarity that promote justice.

Posted by: District Clerk Battling Blakely | Nov 30, 2004 11:56:03 AM

This is powerful stuff, DCBB, and an important set of messages that this Court ought to be respecting. I am inclined to thikn all the splits are partially a result of the fact that this same group of justice have been together for so long (and/or the failure of CJ Rehnquist to be able to be a unifying presence even before he got sick).

If/when there is a seat on the court to fill, especially if it is the Chief's chair, I wonder if these sorts of issues about the court as a decision-making institution may become a topic of serious conversation (especially as it dovetails with whether Bush might select a polarizing nominee).

Posted by: Doug B. | Nov 30, 2004 12:11:56 PM

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