Berman [Ohio State]: No News is Big News Commentary
Berman [Ohio State]: No News is Big News

Douglas Berman, Moritz College of Law, Ohio State University:

"I am genuinely amazed that the Supreme Court has now issued 11 opinions this term, and yet we still have not seen a ruling in Booker and Fanfan. Perhaps it really is all my fault.

I have previously highlighted here and here and here how many different persons and institutions are eager for a decision in Booker and Fanfan — including, of course, both other branches of the federal government.  Recall that, way back in July, the US Congress and the Acting Solicitor General expressed in remarkable terms how critical it was for the Court to promptly rule on the constitutionality of the procedures used in applying the federal sentencing guidelines.  Moreover, as I noted before, last year the Court in McConnell v. Federal Election Commission was able to resolve the constitutionality of the new federal campaign finance laws — in opinions totaling 298 written pages!! — before heading home for the holidays.

I must now speculate that Chief Justice Rehnquist's illness is playing a role in the delay.  Notably, as detailed here, the Chief did not participate in some of the cases decided today.  I presume that reveals that the Chief's health is impacting his ability to be a fully functioning member of Court.  Though I doubt that CJ Rehnquist is a swing vote on whether Blakely applies to the federal guidelines, he could be a swing vote on the second severability question.  Moreover, CJ Rehnquist's absence from the Court may mean that there is not a chief administrator pushing other Justices to complete their opinions.  [UPDATE: Howard Bashman has news here on the impact of the Chief's health, as well as speculations here about who may be writing Booker and Fanfan based on which Justices have yet to author a majority opinion from the Supreme Court's October 2004 argument session.]

More than a few folks, as particularly detailed in posts here and here, have suggested that January would be a better and/or more appropriate time for a decision in Booker and Fanfan.  I am not sure I agree, since I think there are real costs — to both federal and state criminal justice systems — stemming from another month of legal uncertainty about constitutionally required sentencing procedures.  However, given the challenges SCOTUS faces and the apparently deep divisions within the Court, I suppose I should be glad the Court is taking whatever time it needs to get Booker and Fanfan right." [December 13, 2004; Sentencing Law and Policy Blog has the post]

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