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January 21, 2009

Dueling with Spears (aka digesting Spears)

I remain surprised and excited that a majority of the Supreme Court thought it appropriate to use, as the Chief put it, "the bitter medicine of summary reversal" in Spears (opinion here) to reiterate for all circuit courts that they should not --- indeed, must not --- second-guess the work of sentencing courts if and when a district judge has provided a thoughtful explanation for her or his sentencing choices.  I am also pleased and excited that the Justices used such engaging words to talk up their differing assessments of whether a summary reversal was appropriate in this case.

Specifically, Chief Justice Roberts ends his dissent in Spears with these fascinating assertions: 

We should not rush to answer a novel question about the application of a one-year-old decision in the absence of a pronounced conflict among the circuits.

Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.  We should give them some time to addressthe nuances of these precedents before adding new ones.  As has been said, a plant cannot grow if you constantly yank it out of the ground to see if the roots are healthy.

But, in direct response the per curiam opinion for the Court (which certainly has the ring of an opinion from the pen of Justice Scalia) gives as good as it gets:

The dissent says that “Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.”  Post, at 3.  True enough — and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible.

January 21, 2009 at 12:30 PM | Permalink


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As a resident of the city that hosts the Asparagus Festival, I can tell you that if your spears are bitter and indigestible, you are cooking them wrong.

Posted by: Kent Scheidegger | Jan 21, 2009 1:01:42 PM

First, I wish I was as quick as Kent Scheidegger.

Second, the Eighth Circuit claim greater confusion from Booker, Gall, Rita, and Kimbrough, than any of those decisions justify. The Eighth Circuit simply does not like the idea of below Guidelines sentences.

Posted by: dh | Jan 21, 2009 2:23:15 PM

I was gonna say, I have no doubt that Scalia wrote this per curiam opinion.

Posted by: BruceM | Jan 21, 2009 7:31:24 PM

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