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October 2, 2007

Read all about it: Gall and Kimbrough transcripts

Now available at this SCOTUS webpage are the transcripts from this morning's oral argument in Gall and Kimbrough.  Based on brief reports from folks in attendance, the arguments we nuanced and I will have lots of comments once I get to consume these transcripts.  I think I'll read the Gall transcript first, since that case was argued first, and then the Kimbrough transcript.

Fellow readers (and/or argument attendees) are welcome to use the comments to share their thoughts and insights.  Lyle Denniston has shared his views at SCOTUSblog with this post entitled "Analysis: More trouble for Guidelines."

UPDATE:  Though I am finding the transcripts a bit more frustrating than enlightening, but I did very much enjoy seeing Jeff Green in the Gall argument talk about the reasonableness of a sentencing judge looking to a "legal database, for example, or even a blog or something like that."

October 2, 2007 at 03:32 PM | Permalink


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The _Kimbrough_ link is a dead end. The transcript is at: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-6330.pdf

Posted by: JDB | Oct 2, 2007 3:36:52 PM

Thanks. Fixed.

Posted by: Doug B. | Oct 2, 2007 3:40:27 PM

Observations: Scalia has bad posture and doesn't seem to care much about disparity. Stevens is getting crankier by the minute and you almost expect him to jump out of his chair and shout "you whippersnapper!" at the next advocate that politely points out he has misread the precedent. Breyer would love to find a way to save his baby guidelines, as he plaintively asked counsel several times to give him a middle way, or a band-aid, a quick fix, or simply anything! To no avail. Thomas was day-dreaming of porn. Kennedy, not to be out non-sequitured by Stevens, managed to stump the panel at least twice with his apropos of nothing questions like "if Kimbrough were a automobile, what model would he be?" Ginsberg pointed out that if Gall really was as sorry as his lawyer said he would have given all of his drug money to the poor instead of building a hot tub with it. Alito and Roberts both tried to pretend they had read the briefs to no avail. Alito asked repeatedly what Congress could do about the problem... perhaps he's eyeing a bid for a more exciting job with free franking privileges? Roberts was concerned about extending a "abuse of discretion" standard to anyone besides himself, and Souter did his best to confuse me into thinking he was a more gaunt-looking Breyer so my notes are unclear as to what he actually might have said other than "I'm Souter, not Breyer".

Overall it was grand theater and the Justices seemed blithely unaware that both sides had rather shoddy arguments and proposed absolutely no solutions.


Posted by: dweedle | Oct 2, 2007 3:54:32 PM

By when can we expect a desicion on Gall?

Posted by: EJ | Oct 2, 2007 4:01:05 PM

My first reaction to Gall is great disappointment in Petitioner's counsel, from the very first question (If the view of the Court of Appeals and the district court had been reversed, what would you argue?). The Court is looking for an appellate standard that will work (admittedly, some on the Court do not want an appellate standard that will work; they're happy with appellate courts becoming sentencing courts). The answer to that first question has got to be: "If the law is as it should be, with an abuse-of-discretion standard providing great discretion for the district court, then I would have to find some other basis for appeal than the reasonableness of the sentence." By being cute, counsel got laughter, but he undermined his argument terribly. The follow-on questions would have been much easier to handle if he had stuck to one simple idea: "the standard of review is abuse of discretion, and the court of appeals has got to allow the district judge great discretion in sentencing." As it turned out, I believe, counsel got suckered into having the courts of appeals engage in all kinds of mischief, for which they are particularly ill-suited, based on his reluctance to stick with his main argument even with the first question.

I know that this is Tuesday-afternoon quarterbacking, so take my opinion with a grain of salt. But it's still my opinion.


Posted by: | Oct 2, 2007 4:14:46 PM

Mark: None of the advocates offered the Court any solutions -- even when they asked point blank! Abuse of discretion is clearly not favored and when asked for another way all the parties basically shrugged.

Posted by: dweedle | Oct 2, 2007 4:25:55 PM

"Abuse of discretion is clearly not favored"

That's wrong, I think. They adopted an abuse of discretion standard in Koon, and it applies in numerous other circumstances. The question is, when is there such an abuse.

Posted by: Dcounsel | Oct 2, 2007 4:46:18 PM

Dcounsel: It clearly wasn't favored during oral argument today. Roberts, Alito, and Breyer all made pointed comments about it meaning that any decision made by a district court would likely be upheld - regardless of disparity. It came up multiple times. I think the only two justices you could firmly put in the "abuse" corner are Scalia and that ol' Sphinx Thomas... assuming Thomas was even awake today.

Posted by: dweedle | Oct 2, 2007 4:59:41 PM

I'm with Dcounsel. We have "abuse of discretion" as a standard on appeal all over the place. The key question each time is: how much discretion? It's usually highly deferential, and, in my opinion, it should be highly deferential.

The problem post-Booker is that the Court, with Justice Ginsberg's switcheroo from merits to remedial majorities, did a poor job of establishing a workable standard. "Reasonableness" just does not cut it unless it is highly deferential to the district judge. But some on the Court, and a TON of Court of Appeals judges, don't want to give deference to the district judges. So we have a mess.

The only ways out are: 1) "abuse of discretion" with a great deal of discretion on the part of district judges; and 2) Court of Appeals de novo second-guessing of sentencing decisions. In my opinion, the only workable one is "abuse of discretion," but the forces against this one workable option are numerous and powerful. I am not optimistic, but I remain hopeful.


Posted by: | Oct 2, 2007 5:04:16 PM

Keep hope alive Mark... El Jefe Roberts was especially dubious of the workability of an abuse standard today. Right at the top he was saying something like abuse of discretion simply means "inconsistency" and "what's wrong with saying extraordinary circumstances?" From that point on through both arguments he was repeatedly chorusing with Breyer and Alito on the same note. I'd give you more specific quotes but my notes became more abridged after I started flirting with a clerk with pouty lips.

I do realize it's hard to read anything concrete from what questions are asked at oral argument... but If they wanted to fix their mess with an "abuse" standard don't you think they'd have done it already?

They're searchin' for an answer, but I don't think anyone had it today.

Dweedle's Unsolicited and Useless Opinion: Expect a "Rita Redux" with as little guidance as they feel they can get away with.

Posted by: dweedle | Oct 2, 2007 5:27:24 PM

I wasn't present, but I read the transcript, and I agree that Gall's counsel wasn't very well prepared. He stumbled out of the gate on a question that even a novice should have expected.

But I don't think his performance mattered very much. The justices have had plenty of time to think about this issue, and remember, it's basically a do-over of Claiborne.

Posted by: Marc Shepherd | Oct 2, 2007 5:35:52 PM

Gall's counsel did a terrible job of keeping the ship on course. I agree with Mark, he stumbled out the gate and got seriously bruised as a result. It seemed to me that he was too busy guarding his ability to argue against a judge's upward departure in some future case to really commit to the idea of district court discretion.

Oddly enough, it was Justice Roberts who really pulled him back on track at the end of his main argument. I think if Justice Roberts had just let him sit down, his argument as a whole would have done much more harm than good to his cause. The last few paragraphs of the main argument are a great statement of what he should have been focusing the court on from the very beginning.

Posted by: JP Davis | Oct 2, 2007 6:34:12 PM

This whole system is just an absolute disaster.

There is no use analyzing or critiquing these oral arguments anymore, or even the opinions themselves. The lawyers and the Justices could spend their time better by arguing about where exactly the colors of the rainbow bleed into one another.

The only cogent thing I read in any of the transcripts was the Chief Justice's statement to Dreeban that the Solicitor General's office "used to argue" that when Congress wanted to do something, it passed a law through both houses and got the president to sign it. Even if the Solicitor General has decided to abandon that view in select cases, the Supreme Court can adhere to it.

The Supreme Court already *knows* how Congress intended to deal with "sentencing disparities": Congress passed a law that said that the Guidelines were mandatory. The Supreme Court likewise *knows* that Congress *did not* want to deal with sentencing disparities by some common law, experiential appellate-based review (which is why Congress originally made Guidelines sentences completely immune from appellate review). And, if Congress actually *did* intend to deal with sentencing disparities in this way, it would have mandated *de novo* appellate review, not an abuse of discretion review.

So why is anyone on the Supreme Court concerned about sentencing disparities that would be created by truly deferential reasonableness review? If such review gives too much leniency to district court judges, and if this is a problem, Congress knows damn well how to fix it: Just make sure that when you make the Guidelines mandatory again, they adhere to the Blakely mandate, pardners.

Posted by: Aaron | Oct 2, 2007 6:59:34 PM

Harping on the supposed deficiencies of the advocates on either side as if there were some intuitively obvious "correct" or even logically coherent position they might have taken in these cases is really quite silly. It's not these advocates' fault that this Court has written itself and all the rest of us into a doctrinal box canyon. The justices continue to smash their noses against the far wall while everyone else mills around in confusion. But there is no way forward here. Because the nature of lower courts is that they have to resolve cases, the federal system will somehow muddle along with whatever the Supreme Court says in Gall and Kimbrough. But, so long as the Court refuses to admit that it has made a colossal mistake, overturns Blakely, and goes back to the beginning and reconceives Sixth Amendment jury trial doctrine in a coherent way, the rest of us will be like parishioners not possessed by the Spirit watching the pastor speak in tongues. We can try to impose rational interpretations on the noises we hear, but the rationality will be ours and will owe little to the sounds or the speaker.

Posted by: Frank Bowman | Oct 3, 2007 11:10:42 AM

Blakely is perfectly coherent (and sensible, and rooted in the actual text of the Constitution, and consistent with Winship and its progeny, etc. etc.). It is the Booker remedy model that is incoherent.

Posted by: Aaron | Oct 4, 2007 12:33:24 PM

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