judicial oligarchy

The Supreme court recently decided that the detailed guidelines developed to help assure consistent sentencing in federal criminal cases created an impromper situation. Judges needed to know a lot of things, like past criminal history, that were not appropriate to know before the trial took place. So, the effect is that judges are no longer bound by those guidelines and we are back to unrestrained judicial power in sentencing.

Instead of puzzling through the Supreme Court’s knotty opinion in the Sentencing Guidelines case, let’s look at how judges are reacting to it:

“I’m really elated, and I think most judges will be, too,” Judge Jack B. Weinstein of Federal District Court in Brooklyn said. “It gives us the discretion to deal with individual cases without being unnecessarily harsh. This is now, if Congress leaves it, a marvelous system.”

So, the inquiry turns to Congress. What are the pressures and motivations here?

The Supreme Court has taken a constitutional flaw in the Guidelines (which were meant to restrict judges) and fashioned a remedy that keeps the Guidelines in some sense but restores discretion in sentencing to the judges. The judges are “elated,” but Congress may want to reassert its control over the judges.

As noted in the linked article (by Carl Hulse and Adam Liptak in the NYT), just last year Congress started requiring the United States Sentencing Commission to feed it information about which federal judges weren’t following the Guidelines, an attempt to control those terrible federal judges who have the audacity to imagine that they occupy an independent branch of the federal government supposedly accountable to something they arrogantly call “law” and not to the will of Congress.

So here we go into a new season of judge-bashing (and, from the other side, judge-defending), which should go quite nicely with whatever new judicial nominations may happen to come up.
[Ann Althouse; “I’m really elated, and I think most judges will be, too. 13ja05]

the full text of the case … Here‘s Instapundit glancing around and finding the Sentencing Law and Policy blog, which obviously has to do this one and can’t do the hey-don’t-look-at-me routine.


Volokher Orrin Kerr has a lengthy discussion of what he sees as the root problem with this and similar cases, namely, the court dealing with problems within the purview of the legislature through imposition of structural rules.
[James Joyner; Supreme Court Transforms Use of Sentence Guidelines]


The big news of the day, from my point of view, is the Supreme Court decision on the constitutionality of the federal Sentencing Guidelines. As usual, the best place to read about it is at How Appealing. [Patterico at Sentencing Guidelines Decision 13Ja05]


for more, see

I’M NO FAN OF THE SENTENCING GUIDELINES, but I don’t really have a lot to say besides “jeez, can’t the Supreme Court answer this kind of thing with a single, clear opinion?” Previous courts seemed to manage. . . . But this is Doug Berman’s moment to shine. Just head over to his Sentencing Law and Policy blog and keep scrolling. [Glenn Reynolds Instapundit.com 12ja05

also see

Andrew C. McCarthy on Sentencing Guidelines on National Review Online

Senator Orrin G. Hatch on Judicial Nominations on National Review Online

While this decision is ‘only’ for the feds and not for the states, it appears to do two things that are not good for a legal system. One is that it puts the judiciary over the legislature. The other is that it makes consequences of behavior less determinate. One’s fate is more likely to be determined by choosing a judge than it is by the crime and the behavior of the criminal.

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