Friday, October 08, 2004

California Dreamin' and Some Thoughts About Monday's Argument at the Court

After spending over an hour on the A train on my way to JFK and five and a half hours in the middle seat of row 32 aboard Delta flight 462, I’ve finally made to the beautiful campus of Stanford Law School. I’m anxiously awaiting the start of what promises to be two great days of discussion and learning. Although this blog represents the bulk of my thinking on Blakely, I hope that as a result of the Stanford conference, I will be able to produce a more serious and scholarly look at Blakely for publication in a law journal. In particular, I am very interested in exploring the historical role of the jury and the Blakely majority’s use of history to justify the majority opinion.

All of that will have to wait a little longer. The conference does not start until the afternoon, so I’m taking some time this morning to offer some of my thoughts on Monday’s argument in Booker and Fanfan.

My Prediction for Question One

As Tom Goldstein, the consummate Court insider, has reported, the word is that the Blakely majority will hold (see this post, and the surrounding posts as well). Based solely on my observation of the argument, I think that the Court will split 6-3 with respect to Question One, with Justice Kennedy joining the Blakely majority. As you may recall, I set the line at 1.5 Justices for the Booker/Fanfan argument, so I guess I think that the respondents will “cover.” (Remember, this is for novelty purposes only.).

Here’s why I think the break-down will be 6-3. First, I’m assuming that the Blakely majority will hold. There were some reports that Justice Ginsburg might defect from the Blakely majority but based on her questions on Monday, I don’t think she’s likely to defect. Plus, others are reporting that she’s sticking with the majority. I guess I just think that’s right.

Second, I can’t see O’Connor or Breyer, after their dissents in Blakely, making a 180 degree turn. These two Justices were the most active questioners of the respondents (especially Breyer), and I don’t think they will change their position. They put too much into being the voice of the dissent in Blakely, in my opinion. The Chief is hard to peg, but my guess is that he will join Breyer and O’Connor in dissent.

Finally, that leaves Justice Kennedy. Remember, Kennedy is no fan of the guidelines. In fact, he dislikes the guidelines so much that he has a report which bears his name that attacks the guidelines. Despite those feelings, he dissented in Blakely, but the handwriting is on the wall with respect to Booker and Fanfan. Why not join the majority? In my notes, I have Justice Kennedy asking only two questions to Acting SG Paul Clement, both on the topic of what constitutes a “Blakely fact.” He asked the SG if there were any facts which could still be found by the judge under Blakely. He used determining the defendant’s remorse as an example. Doug Berman has picked up on this line of questioning, suggesting that the Court start working through a distinction between “offense facts” and “offender facts.” Although I don’t think that Justice Kennedy will be able to convince the majority to endorse his bright-line, I take his questions to those of a Justice considering joining the majority. Furthermore, I think the respondents may have convinced Justice Kennedy that the "collaborative process" or "dialogue" between the branches which he extols in his dissent may have died in recent years.

I know this amounts to nothing more than a hunch, but I’ll stick to it. (By the way, if you haven’t read the Vanity Fair piece about Bush v. Gore, where former clerks on the Court at that time spill some of the beans, you should certainly get a copy. But be warned, there are some harsh words about Justice Kennedy in there and a choice quote from Scalia reminiscing about his days in Brooklyn.).

On the other hand, Justice Kennedy did ask the respondents what can be viewed as some hostile questions. He pressed them on why a standardless discretionary system is preferable to the guidelines; he asked what policy or principle dictated the respondent’s conclusions; and he asked some pragmatic questions regarding factfinding by correctional authorities, as opposed to judges. In a way, these questions are not hostile if Justice Kennedy’s fears of a standardless sentencing regime are allayed by the Court’s answer to question two. If the Court endorses an advisory guideline system, with meaningful appellate review, I think Justice Kennedy’s fears are put to rest and he joins the majority.

Assuming my prediction is right, I wonder if lower courts will be left to pickup where Justice Kennedy left off in the oral argument. Perhaps they will be the ones to propose the line, if there is one at all. As I mentioned at the beginning of this intolerably long post, I’d be interested to see how Justice Kennedy’s line fits with the judge’s and the jury’s historic role.

Question Two – Who the heck knows?

Trying to figure out what the Court will say with respect to question two is likely an exercise in futility. There are simply too many possibilities and permutations which make predicting how 5 members of the Court will vote very difficult. I do, however, think that based on the questions asked by Justice Breyer and O’Connor, which I think focused more on the remedy than the first question (the transcript will prove me right or wrong on that), that these two Justices will try very hard to agree on an answer to the severance question. My inclination here is that Breyer and O’Connor are thinking, “Well, the guidelines are going down and there’s nothing we can do about it. We might as well do what we can to help forge a consensus with respect to the second question. After all, or dissents in Blakely were so pragmatic, we might as well be pragmatic here and do what we can to limit the chaos.”

I could do a little more speculating on question two, but instead I’d like to raise a point which has been haunting me since the oral argument. At one point during the argument, one of the Justices quipped that their opinion on the second question will have limited relevance because Congress will inevitably, and likely quickly, act to repair the guidelines after the case is decided. There are reports circulating that Congress is contemplating a slue of mandatory minimum sentences should the Court invalidate the guidelines. Should that come to pass, I can’t envision who the winners would be.

Thursday, October 07, 2004

Only a temporary pause

I've been offline for a few days, but I will soon return to the blog. I've been busy arguing before the Senate, the Columbia Law School Senate, that is; researching for a professor (non-sentencing related); and reading for class (not so much on the last one).

I'm about 2 minutes, I'll be on my way to JFK where my ultimate destination will be Stanford Law School and the upcoming Sentencing Conference.

More blogging to come...

Tuesday, October 05, 2004

Late night wrap-up

First, let me say that I apologize for the errors in the posts by Dave Ziff (which have been corrected). Those errors are my own, not Dave’s and are attributable to my hurried attempt to get news out on the blog. In particular, I offer my apologies to Chris, who is a fellow blogger at TalkLeft and a supporter of this blog.

I’d also like to thank Dave Ziff for taking the time to transcribe my ramblings into something coherent for readers of the blog. Thanks Dave!

Dave’s posts offer a rather broad sketch of the argument. Most of the major threads of discussion and questioning are covered by Dave’s posts, but there are many fine points which were not captured. I hope to raise those finer points over the next few days.

A few other blogs are covering the Blakely argument, notably Doug Berman on Sentencing Law and Policy (who I met in person for the first time, despite our many email exchanges), Tom Goldstein covers the argument with some insider information at the SCOTUS blog and Howard Bashman has coverage of the argument on How Appealing.

Prof. Berman’s first post offers some thoughts on the SG’s arguments on Blakely’s applicability.

Prof. Berman has rounded up the media coverage on his site, too.

I’m going to reserve further commentary until tomorrow (which is now today). What a day! Stay tuned.

Monday, October 04, 2004

The Last Word

Before all was said and done, Mr. Clement had his four minute rebuttal. In those four minutes Mr. Clement touched briefly on three points. First, he noted again that a ruling for the Respondents would mean overturning Mistretta. Such a ruling would mean that the USSC was defining crimes, and under Mistretta that is not what the USSC either can do or in fact does. Second, he argued, without much elaboration, that Blakely may increase the power of the prosecutor in plea bargaining, as opposed to what Respondents had argued. Finally, Mr. Clement stated that the Kansas system, with its sentencing jury, is not a panacea.

And then the final red light went off.

Remember, Jason will be arriving back in New York City late this evening, and he will try to make some sense of all this in a real post with some real analysis. Anyway, it's been enjoyable playing Alfred to his Batman. Thanks for reading.

The Respondents Strike Back

Here is Part II of the afternoon: arguments on behalf of the Respondents, Mr. Booker and Mr. FanFan.

First, it was Chris Kelly's turn, the attorney for Mr. Booker. Justice Breyer jumped in with the first question. It is interesting to note that Justice Scalia, the Justice who wrote the majority opinion in Blakely, was the most active questioner of the Petitioner; while Justice Breyer, who wrote a vigorous Blakely dissent, was the most active questioner of the Respondents. I guess each Justice wanted a chance to take his shots. Justice Breyer's question was in three parts, with each part asking Mr. Kelly whether a given sentencing system would violate Blakely. The purpose of these questions seemed to be to test the Blakely rule and try to figure out exactly what sorts of sentencing systems would be allowable under that case's holding. First, Justice Breyer lofted a softball: a system where a judge finds necessary facts. Mr. Kelly responded that this would be unconstitutional. Second, Justice Breyer asked whether a system in which a parole board determined facts would be constitutional. Such a procedure presents a system where the executive branch makes factual determinations, and gets to the issue presented earlier: whether it even matters for the Sixth Amendment what branch of government is doing the factfinding if it is not the jury. Either way, Mr. Kelly responded that such a system would also violate the Constitution. Finally, Justice Breyer asked whether Courts of Appeal would be able to make factual determinations after Blakely. Mr. Kelly's answer was again, no.

Justice Breyer then brought up what Jason has termed (and what has bothered me as well) the sentencing paradox: Under an indeterminate system a judge can pick any number of years, for any reason, based on the "finding" of any fact, but under a guideline system, the limited discretion of judges triggers constitutional problems. On this point, Justice Scalia jumped in, responding that under the indeterminate sentencing system, a Defendant is not entitled to any sentence less than the statutory maximum, whereas the guidelines create legal rights for the defendant. In his mind, this solves the paradox. (But it is still paradoxical to me that our two choices are either: (a) unrestrained judges, or (b) restrained juries, with no option for (c) restrained judges.) Justice Kennedy follows on the point, asking what policy or values create this preference for an indeterminate system over a determinate system. There seems to be no answer to this question. (Although I imagine Justice Scalia would respond that the preference is based on the choice of the Framers and their values and policies.)

Moving on, Justice Kennedy then asks Mr. Kelly about the old California system, which was an indeterminate sentencing system, but where some correctional authority (a parole officer or board) would find facts that lead to a specific sentence. Mr. Kelly remained consistent, and responded that such a system would also violate Blakely. Chief Justice Rehnquist then asked about a hypothetical system where the sentencing range is from one year to life, and then within that sentencing range the parole officer, instead of the judge, got to decide how long the defendant remained in jail. Unfortunately, there seemed to be no answer for that question.

A brief discussion of perjury followed, wherein Justice Stevens suggested that there would be no need for a separate "perjury" trial after conviction because there are instances where a defendant's testimony on the stand, if convicted, would necessarily be rejected by the jury's verdict. That in and of itself could sustain a perjury conviction. Mr. Kelly did not agree. He argued that in addition to just being not true, a perjury conviction requires that the jury find the defendant was knowingly misleading the jury. A jury's rejection of the defendant's testimony would not necessarily mean that they thought he was misleading them, but perhaps just that he was mistaken, confused, or held a different conception of events.

Mr. Kelly, a Federal Defender, [correction: Chris Kelly is not a Federal Defender; he is a private attorney, known for excellent appellate work, from Madison WI, who was CJA-appointed for Mr. Booker] relied upon and repeatedly referred to his experience as a defense attorney in order to shed light on the issues of the case. When compared to the Justices and Mr. Clement, Mr. Kelly is indeed a criminal trial expert, and it would be interesting to know how much weight the Justices gave to his statements based on experience in the trenches.

Justice Ginsburg brought up the Kansas system of sentencing juries, but that did not go anywhere.

Finally, plea bargaining was discussed. Mr. Kelly stated that in most cases federal prosecutors simply charge offense that will be easiest for them to prove. That ease of proof puts pressure on the defendant to plead guilty. Then, after the guilty plea, the prosecutors let the sentencing enhancements do the leg work, increasing the sentence based on other conduct for which their case was not as strong, and conduct that was not the topic of plea discussions. Mr. Kelly argued that if the Respondents prevail, plea bargaining would be more meaningful for all parties and there would be no surprises for defendants at the sentencing stage.

And with that, Mr. Kelly left the lectern and turned the floor over to Ms. Rosemary Scapicchio, the attorney for Mr. Fanfan. Ms. Scapicchio began by accusing the government of being (my word choice, not hers) a flip-flopper. In its Blakely amicus, the government argued that the SCOTUS should uphold the Washington guidelines at issue in that case because the USSG were indistinguishable. Now here, the government is trying to distinguish the two systems.

Ms. Scapicchio echoed and strengthen the point made by Mr. Kelly---that prosecutors simply charge the easiest offense to prove and then rely on sentencing enhancements---by noting that Mr. Fanfan's case was an example of just such prosecutorial maneuvering. Mr. Fanfan was charged with involvement in a cocaine conspiracy. The prosecutors chose not to charge Mr. Fanfan with involvement in a cocaine-base conspiracy, even though they had some evidence of his involvement. Mr. Fanfan then pleaded to the cocaine conspiracy charge, and at sentencing the prosecution introduced the evidence relating to cocaine base as part of Mr. Fanfan's relevant conduct. The eventual sentence received by Mr. Fanfan was 15 years greater than the sentence he would have received under the cocaine conspiracy alone. [correction: Mr. Fanfan did NOT receive the increased sentence, even though that is what the USSG would seem to require. The trial judge imposed the lower sentence and the Government appealed, seeking the higher sentence.] Justice Ginsburg made a comment noting the huge discrepancy---15 years---between the sentence for the plead to charge, and the actual sentence received.

The discussion then turned to severability and remedies. Justice O'Connor noted, and all parties and Justices seemed to agree, that whatever the SCOTUS does here will be at best a temporary fix because Congress is certain to act. With that said, Justice Stevens stated that he doesn't want to tear down the entire guidelines system to cure what may not be a large problem. Considering his question earlier in the afternoon about the percentage of Blakely-affected cases, Justice Stevens seems focused on the scope of the problem. If there are, indeed, only a few cases that would raise Blakely problems, Justice Stevens seems to favor some sort of band-aid solution, such as a jury sentencing system, as opposed to striking down the entire USSG system.

Finally, Justice Breyer asks if anyone has heard of anything, anything pre-Apprendi that argued the USSG were unconstitutional as a violation of the Sixth Amendment. A brief, a law review article, a comment, anything. No one had a response.

And that was all for the Respondents. I'll leave it to Jason to fill in the gaps and make sense of all this, but all in all it seems like an exciting afternoon. Now the waiting begins...

The Argument, Part I

I just got off the phone with Jason. All we have discussed so far is the Petitioner's portion of the afternoon---the argument of Paul Clement, acting Solicitor General and former clerk to Justice Scalia. So what follows is a summary of Mr. Clement's argument. The Respondent's argument will be posted shortly. Then, this evening, Jason will be providing a full briefing of the day's argument, with his commentary and thoughts. I'm simply holding down the fort while he is away. And with that, let's begin...

Right at the outset, Mr. Clement set a pragmatic tone for the argument, noting that there are 1,200 sentencings that occur each week in the federal system, and that this case will affect all of them. If the Court decides this case wrongly, there will be many practical problems. After setting the tone, Mr. Clement began with a discussion of four SCOTUS cases: Witte, Dunnigan, Edwards, and Watts. Each of these cases, Mr. Clement argued, explain the relationship between the USSC, Congress, and criminal defendants, and each case approved of the current arrangement. In the Petitioner's view, a decision striking down the USSG would have to either distinguish or overrule those four recent cases, since in those cases the SCOTUS held that the USSG were sound. In response to this argument, Justice Scalia asked if there was a Sixth Amendment issue in any of the four cases. Mr. Clement responded that there was such an issue in Watts but it was not discussed further. Justice Scalia then questioned Mr. Clement regarding the purpose of the Sixth Amendment. In Justice Scalia's view (at least the view he seemed to be pressing through his questioning), the Sixth Amendment is meant to protect defendants from judges, so regardless of whether the USSG are promulgated by a quasi-judicial commission or by Congress, the protections of the Amendment would still apply. This position would side-step the entire question of what exactly the USSC is or who controls it. Justice Ginsburg, however, was not about to ignore the question, and pressed the issue of whether the USSC was actually independent. She asked if the USSG were enacted in their entirety by Congress, would Blakely then apply and strike them down? Mr. Clement agreed, if that were the case, the USSG would have to fall. Justice Ginsburg then asked if a particular provision of the USSG were enacted by Congress, or if it were enacted by the USSC at Congress's direction, would it too fall under Blakely's force? This seemed clearly to be a reference to the Feeney Amendment. In response, Mr. Clement said no. In his view, even if individual provisions were enacted by Congress, the USSG would still have an overall judicial "character" (his word) and as such even the particular provisions enacted by Congress should be upheld. Throughout this entire line of questioning, Justice Scalia maintained a sarcastic tone about the "judicial nature" of the USSC.

This issue quickly turned to a discussion of Mistretta. Mr. Clement argued that if Respondents were to prevail the Court would have to overturn Mistretta. However, in response Chief Justice Rehnquist stated that Mistretta would have been decided the other way if the premise of the case---that the USSC was not doing the work of Congress---was found not to be true. And that was the end of that line of argument.

Justice Kennedy then asked an interesting line of questions regarding differentiation between kinds of "facts." Even if Blakely were to apply to the USSG, Justice Kennedy wondered whether the jury would still need to find all "facts" necessary for a sentence. To use the Justice's example, would the jury need to find "remorse" or could that still be left to the judge, even under an application of Blakely? Mr. Clement did not seem to have a response to this question, saying only that the Respondents position was "in for a penny, in for a pound" and that there could be no differentiation between facts to which Blakely applied, and those to which it did not.

Justice Stevens wanted to know about statistics. He asked, out of all the individuals that are sentenced in the federal courts, how many present Blakely or Apprendi problems of the type posed by this case? Mr. Clement had data from 2002, which said that 65% of all sentences raise some sort of Blakely issue. However, it was unclear what sort of data that actually was, or if it was the data Justice Stevens wanted. The sort of data Justice Stevens asked about---the percentage of cases that would have Blakely problems---is not the sort of data that can be accurately and precisely measured. For example, some of that 65% probably includes cases involving drug quantity. But would all of those cases have Blakely issues? The data in Mr. Clement's possession could not answer many of Justice Steven's questions, and so the questioning moved on.

Kansas-style bifurcation was discussed briefly, with Mr. Clement claiming that such a solution would be judicial lawmaking and a violation of separation of powers. In response, Justice Kennedy stated his view that the judicial enactment of bifurcation didn't seem like too much judicial lawmaking to him.

At this point, there was a good deal of discussion of the actual text of the USSG themselves. It is possible, and has been argued, that the USSG are not inconsistent with jury factfinding. Discussion focused on the language in 18 U.S.C. 3553(b), which says "the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission . . . ." There was a dispute as to whether "the court" as written in this section could refer to the jury, or whether it necessarily meant the judge (or, and this is my own question, does it make any sense that it would mean one thing the first time it is used, but something else the second?)

Finally, Justice Breyer seemed to "throw a bone" (Jason's words) to the Petitioners by laying out four types of "facts" that would be especially difficult for a jury to find if Blakely were to be applied to the USSG: 1) cases where enhancements involve complicated applications of the guidelines (e.g., grouping); 2) cases where things happen during trial that affect the sentence (e.g., perjury); 3) provisions or enhancements that are too hard for the jury to understand; and, 4) provisions that are too difficult to explain to a jury (not quite certain how this is different, perhaps Jason can clear this up tonight). Mr. Clement agreed, and added that, for example, it would be difficult to explain "relevant conduct" to a jury. Justice Breyer went on to ask whether simply changing the word "shall" in section 3553 to "may" would cure the USSG of any potential problems. Mr. Clement seemed to think that would be a fine idea. However, Justice Breyer saw one potential problem: Under such an advisory system all sentencing decisions would be reviewed for reasonableness, as opposed to some sort of clearly erroneous standard. (I am not certain why this would be the case.) SCOTUS would then become the sentencing commission, reviewing all sentences to determine if they were "reasonable." Justice O'Connor also expressed concern that under an advisory system, there could be no meaningful appellate review.

Finally, throughout the Petitioner's argument, Judge Lynch's opinion in Emmenegger was discussed repeatedly and with much approval. This should come as no surprise, given that case's treatment in the Petitioner's brief, but it is worth noting.

Okay, that is all for now. I'll be back soon with Jason's report on the Respondent's argument. After that, the Petitioner reserved 5 minutes for rebuttal, so we are not done with Mr. Clement just yet.

On your marks...

Hello readers. The hour of 1:00 is upon us, which means Jason is settled into his seat at the Court and oral argument is about to begin. I am at my desk in New York City, setting up my new iPod and awaiting Jason's call some time after 3:00. As fast as I can type, you'll be getting his report from D.C.

Aside from that, I just wanted to introduce myself. I am not nearly as on top of recent Blakely developments as Jason is, but I hope I know enough not to foul up his report. We'll find out soon enough.

215 posts later...

this is my 215th post on Blakely, and the day for oral arguments has arrived. News coverage of today's oral argument is available from the New York Times, the Christian Science Monitor, USA Today,, and just about every other major news outlet.

The plan for later today

I'm pleased to inform the readers of this blog that David Ziff, a third year student at Columbia and a good friend, has agreed to transcribe my thoughts on the oral argument immediately after the last red light comes on.

As you might recall, Dave graciously allowed me to post his notes from the National Association of State Sentencing Commission’s annual conference in New Mexico (Dave's notes are available here), so he's no stranger to the blog.

I plan on calling Dave right after the argument and after he's taken the time to formulate my thoughts into something coherent, he will post my reaction to the argument on the blog. Isn't technology great?

Sunday, October 03, 2004

Some observations with only a few hours to go

I’m now in Washington DC, anxiously awaiting oral argument tomorrow at the US Supreme Court. Appropriately, I’m staying at Jurys in the heart of Dupont Circle.

I’ve been thinking about some of the many lines of questioning that could pop up tomorrow. With two hours scheduled for oral argument, the Court should be able cover a lot of ground.

The two advocates for the respondent will likely face some similar questioning, but Booker and Fanfan each raise their own set of issues. Here’s a quick look at some key differences.

Booker v. Fanfan

Booker’s case is unique, or at least different from Fanfan, in four respects. First, Booker was sentenced before Blakely was decided. Second, Booker’s criminal history score placed him in category VI. Third, Booker was sentenced under 21 USC 821(b)(1)(A), which carries a “statutory” (whatever that means) maximum of life in prison. Because of his criminal history score, Booker faces a 20 year mandatory minimum under the statute. He was sentenced to 360 months in prison based on a judicial finding of 658.5 grams of cocaine base. The jury’s finding was that Booker was responsible for at least 50 grams. Fourth, Booker’s sentence was enhanced for perjuring himself at trial.

Fanfan is distinction from Booker in at least four ways. First, Fanfan’s case raises some relevant conduct issues because Fanfan’s sentence included an enhancement for an attempt to distribute cocaine base, even though the jury only found him guilty of possession with an intent to distribute at least 500 grams of cocaine. Fanfan was sentenced under 21 USC 841(b)(1)(B), which carries a 40 year maximum sentence and a 5 year mandatiry minimum. Second, Fanfan was sentenced after Blakely was decided. Fanfan’s case comes to the Court directly from the trail court, whereas Booker’s case comes from the 7th Circuit Court of Appeals. Third, Fanfan’s criminal history score places him at category I. Finally, Fanfan’s sentence was enhanced for his leadership role in the offense.

Lines of Questioning

The following are some potential topics, or lines of questioning, that the Court may pursue tomorrow. I’ve tried to brainstorm major topics, as well as some semi-obscure ones, leaving out the obvious topics.

- Sentencing juries. Do judges have the authority to convene sentencing juries absent a statutory grant of authority?

- Plea Bargains. Will the Court pickup its vigorous debate over plea bargaining which took place in the Blakely opinion?

- Statistics. What role will sentencing statistics play, if any, in the oral argument?

- A sentencing paradox. If the guidelines are struck down in their entirety, judges will be permitted (until Congress acts, at least) to consider the same factors which they were prohibited from considering under Blakely. How can this paradox be explained in a way that is consistent with the Sixth Amendment?

- Distinguishing Edwards and a few other cases. The respondents will surely be called upon to distinguish several cases from the last 12 years that the government says are inconsistent with the respondent’s position.

- The Sentencing Commission. How much of the government’s brief is a fanciful depiction of the role and function of the Commission? Will the Court press the government on the erosion of the Commission’s independence?

- Harris v. US. Is it still good law? How are facts found by a judge that lead to a mandatory minimum different from facts which simply increase a defendant’s sentence?

- Retroactivity. Is Blakely retroactive?

- Waiver. Does a simple admission by a defendant constitute a waiver of Blakely rights?

What's the spread?

This weekend saw a few notable upsets in the world of college football. Ohio State's bid to win the Big Ten took a step back after losing to Northwestern (which breaks my heart). West Virginia's national championship hopes were dashed, as were Fresno State's hopes.

These upsets got me thinking, who is the underdog in tomorrow's argument?

Certainly, a case can be made for the government as the underdog. If the Court said what it means and means what it said in Blakely, the government is in big trouble. The "law" certainly doesn't favor the government, Witte, Dunnigan, Edwards, etc. notwithstanding. At the same time, the practical impact of a ruling for the respondents may make one of the Justices in the majority squeamish, giving the government the edge.

On the other hand, when it comes to the oral argument itself, the respondents are the underdog. Acting SG Paul D. Clement certainly has an experience edge over the very capable respondent's lawyers when it comes to arguing in front of the Supreme Court. So, the government clearly is playing "at home" in this one.

According to the poll results on this page, the guidelines are headed for valhalah or purgatory, depending on where you sit.

All told, I think the line in this one is respondents -1 1/2 Justices.

And one more question while we're on the topic of underdogs and Blakely. How did Jamal Lewis get such a great deal?

(Note: The Blakely blog does not encourage or condone gambling on cases before the Supreme Court, or any court. This post is for novelty purposes only, much like every other post.)

Notable Pre-argument Articles

A flurry of opening term articles are out there which summarize some of the cases the Court has agreed to hear this term. Below, you'll find a few articles which discuss Booker and Fanfan in moderate to high detail.

Charles Lane of the Washington Post has an article entitled, "Supreme Court to Consider Federal Sentencing Guidelines." Although close Blakely followers won't learn anything new from this article, it's a good but brief summary of the genesis of the current controversy.

The New York Lawyer has a story on the New York angle of tomorrow's argument. The article discusses former S.D.N.Y. Judge Martin's brief, and the brief filed by the New York Council of Defense Lawyers.

If you don't want to read, you can listen. NPR has a preview of the upcoming term available online. The guests are Kathleen Sullivan, law professor and former dean at Stanford Law School and John Yoo, law professor, University of California at Berkeley Law School.

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