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December 13, 2004

No news is big news

I am genuinely amazed that the Supreme Court has now issued 11 opinions this term, and yet we still have not seen a ruling in Booker and Fanfan.  Perhaps it really is all my fault.

I have previously highlighted here and here and here how many different persons and institutions are eager for a decision in Booker and Fanfan — including, of course, both other branches of the federal government.  Recall that, way back in July, the US Congress and the Acting Solicitor General expressed in remarkable terms how critical it was for the Court to promptly rule on the constitutionality of the procedures used in applying the federal sentencing guidelines.  Moreover, as I noted before, last year the Court in McConnell v. Federal Election Commission was able to resolve the constitutionality of the new federal campaign finance laws — in opinions totaling 298 written pages!! — before heading home for the holidays.

I must now speculate that Chief Justice Rehnquist's illness is playing a role in the delay.  Notably, as detailed here, the Chief did not participate in some of the cases decided today.  I presume that reveals that the Chief's health is impacting his ability to be a fully functioning member of Court.  Though I doubt that CJ Rehnquist is a swing vote on whether Blakely applies to the federal guidelines, he could be a swing vote on the second severability question.  Moreover, CJ Rehnquist's absence from the Court may mean that there is not a chief administrator pushing other Justices to complete their opinions.  [UPDATE: Howard Bashman has news here on the impact of the Chief's health, as well as speculations here about who may be writing Booker and Fanfan based on which Justices have yet to author a majority opinion from the Supreme Court's October 2004 argument session.]

More than a few folks, as particularly detailed in posts here and here, have suggested that January would be a better and/or more appropriate time for a decision in Booker and Fanfan.  I am not sure I agree, since I think there are real costs — to both federal and state criminal justice systems — stemming from another month of legal uncertainty about constitutionally required sentencing procedures.  However, given the challenges SCOTUS faces and the apparently deep divisions within the Court, I suppose I should be glad the Court is taking whatever time it needs to get Booker and Fanfan right.

December 13, 2004 at 10:55 AM | Permalink


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Did you notice that the "anonymous blog" at the end of this post replied to critics who were worried that it was revealing internal deliberations by linking to two SATIRE sites?


Somebody might be pulling your leg. On the other hand, maybe you should just stop predicting? I mean, it ain't news till it's news, you know? The Lord and the courts move in mysterious ways.

Posted by: Scott | Dec 13, 2004 11:21:42 AM


Posted by: JOE QUATTRONE | Dec 13, 2004 11:25:21 AM

Yes, the Court is recessed until January 7th. The next possible dates for issuing opinions are January 11th, 12th, 18th, 19th, and 24th.

Posted by: Marty Lederman | Dec 13, 2004 11:27:33 AM

Douga culpa?

Posted by: A. Non Emus | Dec 13, 2004 11:58:21 AM

I'm now more-than-ever convinced that Justice Stevens is writing the principal opinion in Booker/Fanfan. As Howard Bashman pointed out, there are still five cases outstanding from the October session, and three Justices have yet to publish opinions from that session: Stevens, Scalia and Kennedy.

If the government won Booker/Fanfan, then Kennedy is almost certainly the author, but this seems unlikely. An opinion upholding the guidelines is a lot easier to write than an opinion invalidating them. We would have seen the decision by now.

That leaves Stevens and Scalia. Assuming the Chief dissents, as he has done through the Apprendi line of cases, Stevens as the senior Justice in the majority gets to assign the opinion. He gave Blakely to Scalia, and most likely he's kept Booker/Fanfan for himself.

I also note that Stevens and Kennedy are the only Justices without a published opinion yet this Term. Scalia had his first today.

Posted by: Marc Shepherd | Dec 13, 2004 1:12:47 PM

I think that Booker is still going to result in the demise of the guidelines. As far as severability, I think the court will ultimately decide not to sever but I think the vote is extremely close on that. I expect Scalia or Thomas will write the majority opinion. Breyer for the dissent. And Rehnquist will take part.

Posted by: Jeremy Murphy | Dec 14, 2004 10:20:28 AM

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