WIth the Indiana Supreme Court silent and judges of the Court of Appeals beginning to bail out, I think it's time to come out of Booker-induced hibernation. Also, because of the snow storm back east, the Natale / Abdullah / Franklin arguments in the New Jersey Supreme Court have been put off from tomorrow at 10:00 a.m. until March 14th. Nature abhors a vacuum.
I haven't written anything about Booker, and I haven't really wanted to. But now that Indiana judges are starting to do considerable violence to it and to reason--about which more in the next post--I have to put in my tuppence.
I haven't wanted to say anything about Booker because it was, for me, ultimately, incredibly infuriating and incredibly boring. It was also an incredible waste of all the care given to the problems posed by Blakely by some quite imaginative, thoughtful, and clever federal judges. And all in the name of efficient administration--at the cost of a new, unheard-of severability analysis that cannot pass the laugh-test. I think Justice Stevens adequately detonated any plausibility to Justice Breyer's opinion when he wrote in his dissent:
Our "severability" precedents, however, cannot support the Court's remedy because there is no provision of the SRA or the Guidelines that falls outside of Congress' power. See Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). Accordingly, severability analysis simply does not apply.
. . . .
Rather than rely on traditional principles of facial invalidity or severability, the majority creates a new category of cases in which this Court may invalidate any part or parts of a statute (and add others) when it concludes that Congress would have preferred a modified system to administering the statute in compliance with the Constitution. This is entirely new law. Usually the Court first declares unconstitutional a particular provision of law, and only then does it inquire whether the remainder of the statute can be saved. See, e.g., Regan v. Time, 468 U. S., at 652; Alaska Airlines, 480 U. S., at 684. Review in this manner limits judicial power by minimizing the damage done to the statute by judicial fiat. There is no case of which I am aware, however, in which this Court has used "severability" analysis to do what the majority does today: determine that some unconstitutional applications of a statute, when viewed in light of the Court's reading of "likely" legislative intent, justifies the invalidation of certain statutory sections in their entirety, their constitutionality notwithstanding, in order to save the parts of the statute the Court deemed most important. The novelty of this remedial maneuver perhaps explains why no party or amicus curiae to this litigation has requested the remedy the Court now orders. In addition, none of the federal courts that have addressed Blakely's application to the Guidelines has concluded that striking down §3553(b)(1) is a proper solution.
Most importantly, the Court simply has no authority to invalidate legislation absent a showing that it is unconstitutional. To paraphrase Chief Justice Marshall, an "act of the legislature" must be "repugnant to the constitution" in order to be void. Marbury v. Madison, 1 Cranch 137, 177 (1803). When a provision of a statute is unconstitutional, that provision is void, and the Judiciary is therefore not bound by it in a particular case. Here, however, the provisions the majority has excised from the statute are perfectly valid: Congress could pass the identical statute tomorrow and it would be binding on this Court so long as it were administered in compliance with the Sixth Amendment. Because the statute itself is not repugnant to the Constitution and can by its terms comport with the Sixth Amendment, the Court does not have the constitutional authority to invalidate it.
(Footnote omitted) (emphasis added).
Professor Paul Kirgis of St. John's law school writes in an abstract of a forthcoming article in the Georgia Law Review: "Booker fails on its face as a matter of logic. Its constitutional remedy negates the very right the case purports to protect."
Maybe someday something will come to light to explain Justice Ginsburg's vote. I do not think anything will ever come to light to attenuate the taint, as fourth amendment law puts it, attached to Justice Breyer's being the one to save the Guidelines he had so much to do with creating.
Don't get me wrong. Justice Breyer is (usually) smart, engaging, and interesting. And that is what makes his remedial opinion especially indefensible. Justice Stevens mentions "judicial fiat." Well, quite. Justice Breyer might just as well have simply said what "fiat" means in Latin: "Let it be so." The opinion's legal apparatus is a fig leaf without much, if any, coverage.
I have not seen any state courts do a Booker yet, but the the New Jersey Attorney General is certainly asking the New Jersey Supreme Court to do the dive in Natale, Abdullah, and Franklin.
On the Indiana front, recall that Justice Dickson suggested at the Heath and Smylie oral arguments that to save the Indiana sentencing scheme--which is also not unconstitutional on its face--one might simply construe "shall" to mean "may" in one place. At the time, the suggestion shocked me. After Booker, nothing would surprise me. And the fact that Heath and Smylie have not yet been decided leads me to conclude that Booker may have caused the Indiana Supreme Court to rethink, at least in part, whatever it was preparing.
That's why I found Booker infuriating. Not only did the Administrators prevail, they did so by making the lawyers, the lower court judges, and the law, itself, irrelevant. I happens all the time in Indiana. It is, in fact, the genius, from a certain perspective, of the Indiana legal establishment that much is done to make sure that everyone has a lawyer. The courts from top to bottom then do equally much or more to make the lawyers irrelevant. (In criminal law, the State is usually, but not always, the beneficiary of this arrangement. Imagine my surprise upon obtaining, once upon a time, post-conviction relief for a client on a claim I had never made. Imagine the Client's surprise. I think I have a pretty good idea of how some Justice Department lawyers must have felt on seeing Justice Breyer's remedial opinion.)
I found Booker boring because: 1) it really does leave everything up to the Administrators, with some minor wrangling to be done in the federal courts about appellate review of sentences under the judicially imposed advisory Guidelines; and 2) contrary to two recent opinions of judges on the Indiana Court of Appeals, Booker has almost no application, doctrinally, to Indiana's sentencing scheme. (The "almost" is important, because a portion of Justice Stevens' dissent does, arguably, resolve a certain uncertainty in Blakely's Indiana application.) I also don't think Booker has much application to other state sentencing schemes that I have looked at.
I think it was Walker Percy who wrote that about the time a man gets bored, a dog goes to sleep. I think Booker caused me to get in touch with my inner dog and sent me into hibernation.
Well, I'm awake now, and there's some barking to catch up on.