Interesting facets of the Koch dissent

Of course, the big news from the Sixth Circuit’s Koch decision (details here) is Judge Jeffrey Sutton’s majority opinion, which makes a spirited defense of the federal guidelines in the face of Blakely (and makes no defense of the Sixth Circuit’s curious order in Koch recommending the announcement of alternative sentences). But the dissent, authored by Judge Boyce Martin and joined by Judges Daughtrey, Moore, Cole, and Clay, has a number of interesting and noteworthy facets. Here are just a few of many possible observations on this front:

1. Politics as usual? Unlike the unusual coalitions of Justices in Blakely, the decision in Koch nearly reflects the judicial equivalent of a “party-line vote.” If my calculations are correct, all five judges joining the Koch dissent were appointed by Democratic Presidents, while seven of eight judges in the Koch majority were appointed by Republican Presidents(Judge Gilson is the exception).

2. Surprising civility? For a court which has made headlines for its infighting (details here and here), the tone and the language of the dissent is more civil than I might have expected.

3. Can a dissent have dicta? Interestingly, the last three pages of the dissent address whether a Blakely claim can qualify as plain error. Though it is said that history is written by the winners, apparently the Koch dissenters hope that plain error doctrine can be written by the losers.

4. Better not to decide? Amusingly, before reaching out to address plain error, the dissent makes a spirited argument that “the most appropriate course of action would be to withhold our decision until the Supreme Court has spoken.” Indeed, the harshest words in the dissent are at the outset when Judge Martin asserts that the “majority’s opinion in this case amounts to nothing more than an exercise in futility and a waste of time and resources, in light of the Supreme Court’s grant of certiorari” in Booker and Fanfan.

5. The duties of lower court judges? Though necessarily a secondary issue to the merits, so much of the post-Blakely, pre-Booker/Fanfan jurisprudence wonderfully spotlights the challenges for lower court judges. As noted before, Judge Sutton invokes Learned Hand for the proposition that circuit courts ought not anticipate the overruling of Supreme Court precedents. But Judge Martin responds by asserting that, in Koch, “the majority ignores our very duties as United States Circuit Judges:”

Having insisted upon declaring its view regarding the applicability of Blakely to the Guidelines, rather than – as I would do – awaiting the Supreme Court’s impending resolution of the issue, the majority is obligated, as we all are, to interpret and apply Supreme Court precedent to the facts of this case, regardless of whether its analysis leads to a result that it does not like.