Sentencing Guidelines and the Jury Trial Clause post-Blakely:

A Seventh Circuit panel, in an opinion by Judge Posner, essentially holds large aspects of the federal Sentencing Guidelines scheme unconstitutional because of the recent Supreme Court Blakely decision. (That’s an oversimplification, but it’s close enough.) Judge Easterbrook dissents.

Special bonus: Use of the words “ukase” and “discombobulate.” Thanks to Doug Berman (Sentencing Law and Policy) and How Appealing for the pointer.

UPDATE: Geoffrey Manne, a lawprof at Lewis & Clark, notes this little bit of sparring between Easterbrook and Posner:

Note this bit from Easterbrook’s dissent:

Procedure first. The Supreme Court alone is entitled to declare one of its decisions defunct. Even if later decisions wash away the earlier one’s foundation, still the power to administer the coup de grâce belongs to our superiors. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). . . . The Supreme Court alone can make a definitive judgment.

Slip Op. at 12. The reference to State Oil v. Khan is particularly poignant. Why? Because the appellate court opinion in Khan goes to great pains to adhere to Supreme Court precedent (precedent, in that case, described as having “increasingly wobbly, moth-eaten foundations”) despite its strongly-expressed reluctance to do so. The appellate opinion in Khan practically begs the Supreme Court to reverse, but nonetheless feels bound by existing, if “moth-eaten,” precedent. Of course the opinion was authored by Judge Posner.
I should mention that Posner does, in his opinion in Booker (in the paragraph containing the word, “ukase,” in fact), note the potential conflict with the State Oil v. Khan dictum, and he deals with and dismisses it. Still, Easterbrook’s subtle barb seems to have been well-aimed.

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