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January 13, 2005

Severability as a Ouija Board

Doug asked me to step in for a few hours while he's on the road. It's always a pleasure.

I've been reading through the Booker opinions pretty slowly, trying to edit them for use by law students (the cases will go into an Instant Supplement to the casebook that I edit with Doug, Nora Demleitner, and Marc Miller). Doug made the point earlier that the Breyer opinion relies on some shaky legal reasoning to craft, by judicial fiat, a substantively attractive guideline system. That point became especially clear to me in reading the passages in Breyer's opinion dealing with the standard of appellate review.

Breyer, it seems to me, uses the severability doctrine like a Ouija Board. He points the doctrine at the entire body of federal sentencing statutes, and which statutory sections does this doctrine instruct the Court to excise?  It points to the mandatory power of the guidelines for District Court judges, and the Feeney Amendment's change to the appellate enforcement mechanism. The guidelines still must be consulted, the Sentencing Commission and probation officers continue to do their work to support judges, but the much-reviled Feeney Amendment must fall.  Remarkable, isn't it, that the severability Ouija Board instructs the Justices to strike down precisely the two provisions that are most unpopular as a policy matter among federal judges?

Ron proves his brilliance (though perhaps also shows his age) through his Ouiji Board analogy to describe Justice Breyer's remedial handiwork.  I write simply to spotlight the particular irony that Justice Breyer claims his (Ouji Board) severability moves are to serve "Congress' basic goal ... of increased uniformity."  But Congress clearly believed in 1984 when it enacted the Sentencing Reform Act, and in 2003 when it passed the Feeney Amendment, that increased uniformity is served by having mandatory guidelines and by a de novo standard of review of departures.  Nevertheless, now according to Justice Breyer purportedly divining Congressional intent, those aspects of the federal sentencing system have to be tossed in the name of achieving "increased uniformity."

January 13, 2005 at 03:01 PM | Permalink


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Great post, but I have to say the best part is the link to the Ouija board site.


Posted by: Kyron J Huigens | Jan 13, 2005 3:43:37 PM

Except, to be fair, Justice Ginsburg is the only Justice who actually wanted that result. Breyer and the other three justices who joined his opinion are Apprendi dissenters who wouldn't have struck down the guidelines at all.

Posted by: AF-law student | Jan 13, 2005 3:44:30 PM

I like the Ouija board analogy.

If Justices Stevens and Scalia head up the Court's formalist wing, surely Justice Breyer heads its pragmatist wing. This was pragmatic law-making at its best--or worst, depending on your point of view. If this decision does anything, it will help your law students see the difference between these two types of judging, since it's rare that they're on display simultaneously in the same case.

AF-lawstudent pointed out that Ginsburg is the only justice who joined both opinions. That's true, but the second half of the decision has Breyer's fingerprints all over it. Ginsburg and Rehnquist joined Breyer's opinion, but neither one normally writes like that.

Posted by: Marc Shepherd | Jan 13, 2005 4:23:49 PM

Marc: Absolutely, the opinion is Breyer's work. My point was that in criticizing the "Justices" for striking down "precisely the two provisions that are most unpopular as a policy matter among federal judges," to be fair we have to keep in mind that only Ginsburg actually voted for that result.

Posted by: AF-law student | Jan 13, 2005 4:33:00 PM

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