I have now worked my way through the majority opinions in Booker/Fanfan; while I'm sure I'll have a better picture after I read the rest of the opinions, in the interests of timeliness I thought a quick and tentative post now might be of interest.

  The basic picture is that the Apprendi Five held to apply Blakely to the guidelines, but that Justice Ginsburg balked at the idea of foisting all of Blakely's implications on Congress and either forcing Congress to stick with it (highly unlikely) or make them rewrite the law immediately. She was willing to take a softer approach: Blakely applies, rendering the entire Federal Sentencing Guidelines advisory and non-binding, with the caveat that the Feeney Amendment's de novo review of upward departures is gone and replaced with a general reasonableness appellate standard of review for sentencing decisions. The four Blakely dissenters were willing to go along with this softer view, at least in light of the Apprendi Five's decision to apply Blakely to the federal guidelines. Thus Justice Breyer writes the second half of Booker/Fanfan ruling that the Guidelines are now advisory, not binding law, and that sentencing decisions are to be reviewed by appellate courts under a reasonableness standard.

  What to make of this? In the end, Justice Ginsburg's switch led to the Justices imposing a soft revolution in sentencing law instead of an aggressive one. Blakely remains the law: the Court has adhered to its view that all sentencing schemes must comply with the Apprendi Five's preferred elements-analysis approach to the Sixth Amendment. But the Justices won't impose on Congress the vision driving at least some of the Apprendi Five (and embraced by many of Blakely's academic supporters) that the Court can force the system to bolster defendant's rights by simply tacking on a set of jury trial rights onto the existing guidelines system. The Blakely revolution is here to stay, but the Court isn't going to impose its specific substantive vision on an unwilling Congress.

  This is all just a very tentative reaction. More (and hopefully better) analysis later. In the meantime, I'll enable comments.