Initial Reaction to Booker/Fanfan Majority Opinions: 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.

Implementing Blakely and Remedies for Structural Rules: Today's opinions in United States v. Booker provide an interesting example of the problem with judicial remedies for violations of structural rules — rules that require or forbid a particular relationship, but cannot compel a particular outcome. We see this most often in the context of the Equal Protection clause. The Equal Protection clause requires the structural rule of equal treatment; it blocks state actors from treating alike groups differently. But the Equal Protection clause can't make a legislature treat everyone well. A legislature generally is free to respond to a judicial decision finding an Equal Protection violation by lowering the bar and treating everybody poorly, instead of just one group. A court can impose a structural rule of equality, but it can't mandate a specific level of protection.

  What does this have to do with Booker? It seems to me that implementing Blakely at the federal level raised a similar problem. Blakely imposes a structural rule for how legislatures have to do sentencing, much like equal protection decisions impose structural rules on treating alike groups differently. If a sentencing scheme permits the imposition of greater punishments upon finding a set of facts, then a defendant has a jury trial right to the finding of those facts. Over the long term, this structural rule isn't a guarantee of good treatment. Much like equal protection doesn't necessarily mean strong protection, Blakely doesn't mean strong Sixth Amendment jury trial rights. It just means jury trial rights that follow the structural rule of Blakely: If a sentencing scheme permits the imposition of greater punishments upon finding a set of facts, then a defendant has a jury trial right to the finding of those facts.

  In Booker, the Court had to find the initial starting point for implementing the Blakely structural rule. It's important to realize that the issue was only the starting point; one way or another, it's the legislature that gets to implement the Court's structural rule, not the Court. But the various opinions of the Court reflect two basic short-term approaches to implementing a structural rule change. One is to force the legislature to raise the bar: in effect, to mandate a strong level of protection across the board. That was the approach favored by Stevens, Scalia, Thomas, and Souter: they would have compelled the current sentencing regime to add protections to defendants by keeping existing law intact but just adding jury trial guarantees to all sentencing enhancements. It's kind of like mandating that everyone be treated well in an equal protection case; the goal would have been to use the new structural rule to bolster protections.

  Justice Breyer's majority opinion followed a very different approach: it takes the starting point of opting out of the structural rule entirely, preserving as much of the status quo as possible. It says, in effect, that Congress would have never designed the system it did if it had known that the Court would later on impose the Blakely structural rule. Given that, the thinking goes, it's pretty unfair to impose Blakely's structural rule on the existing system. So rather than use Blakely to bolster protections, the Court opted to follow the Blakely structural rule by holding that the noncompliant guidelines are no longer binding in the first place. Recall the Blakely rule: If a sentencing scheme permits the imposition of greater punishments upon finding a set of facts, then a defendant has a jury trial right to the finding of those facts. Fine, Justice Breyer says: if we're going to impose that structural rule, then we can be most true to Congressional intent by holding that nothing in the guidelines requires the imposition of greater punishment. Ergo, no need to create all these new jury trial rights that we don't think Congress would have wanted had they been forced to implement Blakely's structural rule.

  Blakely enthusiasts will find the Breyer opinion unsatisfying. Breyer's opinion tries to minimize the judicially imposed revolution by finding a starting point that preserves the status quo as much as possible. If you don't like the status quo, you won't like what Breyer does. I suspect that is true for many Blakely enthusiasts: in my experience, many Blakely enthusiasts are more interested in Blakely as a mechanism to create stronger Sixth Amendment protections than as an asbtract structural rule. To them, reading Breyer's opinion may trigger a reaction akin to what you might feel if you convince a court that there's an equal protection violation, and then find yourself stuck with poor treatment all around. While the violation has been cured in a technical sense, it doesn't really bring you the end result you had in mind.

  On the other hand, the majority's approach seems to me a reasonable way to begin to implement a new structural rule. Breyer's opinion declines to hold Congress to a bargain it never struck. It implements Blakely's structural rule in a minimalist way that in the short term tries to preserve as much of the status quo as it can. In the long run, implementing Blakely is Congress's problem; Justice Stevens' opinion for the Court applying Blakely at the federal level means that Congress has its work cut out for it over the long term. But Justice Breyer's opinion gives Congress some breathing room in the short term before Congress figures out what to do next.

  UPDATE: I have made a few minor corrections to the post to clean it up a bit.

The Blakely Revolution, Justice Scalia, and the Living Constitution: In his part of the majority opinion in United States v. Booker, Justice Stevens had what I think is the most honest explanation of the origins of the Blakely revolution. As sentencing guidelines schemes became increasingly popular in the 1980s and 1990s,

the Court was faced with the issue of preserving [the] ancient guarantee [of the Sixth Amendment] under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism but by the need to preserve Sixth Amendment substance.

  In the view of Blakely proponents, times had changed, and the Court needed to rethink Sixth Amendment rules "to preserve Sixth Amendment substance" in light of new sentencing guideline regimes.

  The obvious question is, how could Justice Scalia and Justice Thomas join in this example of what might plausibly be called "living constitutionalism"? My speculation is that there are two reasons.

  First, Justices Scalia and Thomas are open to creating new constitutional rules when they think that something new is needed to restore the function of an old doctrine. If changing technology or practice threaten the function of the old rule, Thomas and Scalia are willing to create new ones. An interesting example of this is Kyllo v. United States, in which Justice Scalia's opinion, with Justice Thomas on board, created a new Fourth Amendment rule to regulate thermal imaging devices. Changing technology threatened to eliminate the Fourth Amendment's traditional protection of the home, and so Scalia created a new rule to try to restore old protections.

  Second, Justices Scalia and Thomas much prefer rules to standards. That is, they like clear legal rules knowable ex ante instead of mushy balancing tests applied ex post. Apprendi/Blakely opponents never came up with a rule to protect the Sixth Amendment jury trial guarantee, while Apprendi/Blakely proponents did. Faced with a choice between a rule and a mushy balancing test, Justices Scalia and Thomas naturally gravitated to the new rule adopted by the Court in Blakely.

  I have enabled comments.