Singing Loudly

After reading the Booker opinion, I have to say that this is one of the worst opinions I can think of. It's a sad day when I side more with Scalia than with Ginsburg. It's a sadder day when my trust in Ginsburg as a jurist has vanished.

Booker is going to go down as one of the most damaging opinions for criminal law that we've seen. The reason isn't because of the right. The right is the section of the opinion written by Justice Stevens. It's a mildly interesting part of the majority opinion. It is the part of the opinion that says that under the 6th Amendment the guidelines are unconstitutional because it violates the right for juries to determine the facts.

Then the remedy opinion was written by Breyer. This is where the Booker opinion turns to the atrocious. This is where everyone should throw up their arms in disgust, toss the opinion on the ground, and curse Ginsburg for being the swing on the remedy.

What happened with the remedy was Breyer said, in short hand, "look, we've got these guidelines that Congress really wanted. It was made by the Sentencing Commission which is my little puppy. I don't want to get rid of this altogether. After all, that wouldn't be what Congress wants. No, what Congress wants of for my little puppy to live. Even if it gives discretion to the judge, which is the opposite of what the guidelines were developed for. How we'll do this is by removing the parts of the guidelines that say it is mandatory. In effect, we will legislate from the bench my will on the guidelines. I want them to live. Then, on appeals for sentencing, there will have to be some sort of a standard for reviewing judges. Before it was de novo (in other words, the reviewing judge could hear it fresh and decide if the sentencing was correct. Look at everything and make their own decision), but de novo won't work. How about something like reasonableness. That sounds good."

That is the remedy. That is the judicial crap that was created. I feel really bad for all of my friends who are working in the federal courts right now. With a shitty opinion comes a few headache-filled months trying to sort out all the questions left by this opinion.

In my view, the most acceptable remedy in this decision came from Stevens who dissented in part. He should have been able to write the entire opinion. I think that if Ginsburg had not gone insane and agreed with the Breyer opinion, it would have been Stevens who wrote the opinion for the entire court. I think then Thomas would have attached to Stevens and wrote a concurrence to explain that he disagreed with the severability and legislative history analysis in the remedy portion of the opinion.

Of course, regardless, this was bound to become a mess. Breyer has just made it an undue mess with bad jurisprudence.