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.

I really like your conversation on lawyers. I have a lawyers secrets blog if you wanna come on over and check my stuff out.
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