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June 13, 2007

Are we just a day away from a ruling in Rita?

Word on the street is that the Supreme Court could issue as many as four opinions tomorrow morning.  And, as regular readers may recall from this post, Deputy SG Michael Dreeben last month predicted that Claiborne and Rita would be decided in the second week of June. 

Of course, Dreeben's prediction predated the unexpected demise of Claiborne and the new federal sentencing cert grants.  Nevertheless, it is surely only a matter of weeks before we get a decision in Rita, and perhaps in fact now it is only a matter of hours.

Any (last-minute?) guesses about what Rita will say and how many opinions there will be? 

June 13, 2007 at 01:27 PM | Permalink


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Any possibility that Rita would be held over to be decided with Gall?

Posted by: anonymous | Jun 13, 2007 2:33:20 PM

What's the basis for the "word on the street" prediction of "as many as four opinions"? The Clerk's Office at the Court never states precisely how many opinions will be issued. And I'd be very surprised if they ever coyly hinted to the media, "could be up to four opinions."

A prediction as broad as that will probably turn out to be true, but there doesn't seem to be any basis for it.

Posted by: steve | Jun 13, 2007 2:42:25 PM

Rita will be a 6 to 3 decision upholding a presumption of reasonability for within-guidelines sentences. Scalia will be one of the dissenters.

Posted by: Bruce | Jun 13, 2007 4:03:25 PM

There will be three separate opinions, none of which will command a majority.

* Stevens, Scalia, and Souter (op. by Scalia) will say that there is nothing sacred about the Guidelines. The District Court may read them for as little or as much guidance as it feels they offer, and is bound only by the statutory minimum, the statutory maximum, and the 3553(a) factors. The Court of Appeals can only reverse if: (1) the sentence is contrary to the statutory minimum and maximum, or (2) the sentence is based on a misapprehension that the District Court is somehow bound by anything other than the minimum and the maximum. Parsimony is only a guideline, and to the extent it reflects Congressional intent, it should be noted that when Congress drafted that statute, it also intended that the Guidelines be mandatory. They will vote to affirm.

* Breyer, Alito, Roberts, and Thomas (op. by Breyer) will say that the Guidelines represent Congress's intent as to the results of the 3553(a) analysis. So long as a Guidelines sentence does not exceed the statutory maximum, it is presumptively correct. A District Court need not explain itself when sentencing within the Guidelines, but must offer either (1) a case-specific justification for a non-Guidelines sentence (see Pho, Eura, and 8 other Circuits), or (2) an explanation of why a different sentence is compelled by a factor that the Guidelines failed to account for, where that failure was not deliberate. They will vote to reverse.

* Justice Kennedy will concur in the first opinion without explanation, wax eloquent about the mysteries of life, quote extensively from Kafka and Dostoyevsky, and explain that as our society evolves toward a more just future, so too must our sentencing practices.

Justice Ginsburg will join all three opinions without explanation.

The result will be 5 votes to affirm (Stevens, Scalia, Souter, Kennedy, Ginsburg) and 5 to reverse (Roberts, Alito, Breyer, Thomas, Ginsburg), and the result will be an affirmance.

Posted by: tea leaf reader | Jun 13, 2007 4:13:37 PM

I predict the Court will affirm in Rita, though I have no prediction as to the reasoning or the lineup of justices. I would not be surprised to see a plurality opinion.

Posted by: Marc Shepherd | Jun 13, 2007 4:48:16 PM

"Justice Ginsburg will join all three opinions without explanation."


Posted by: Bruce | Jun 13, 2007 5:15:49 PM

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