Brief brief comments

Slowly and not so surely, I am working my way through some of the Booker and Fanfan briefs filed yesterday (available here and here). I have decided to focus first on the amicus briefs, in part because it is fun and interesting to see the different ways that different folks talk through similar issues. In this vein, the NAFD brief earns significant bonus points for (quite effectively) seeking to discuss distinct issues in distinct ways; the WLF and NYCDL briefs earn a few demerits for (somewhat ineffectively) seeking to avoid the severability issue.

Though in-depth comments will come later, I want to note here how interesting it is to read these briefs while thinking about Blakely as a decision seeking to vindicate democratic values (as suggested here), or as a decision seeking to vindicate an adversarial system of justice (as suggested here and here).

Critically, from these perspectives, the initial question of whether Blakely should apply to the federal guidelines becomes easier: the fact that the federal guidelines were created by an unelected administrative agency makes them even more problematic under either theory of Blakely. And yet, the subsequent severability question is arguably harder if one fully embraces the “democracy” or “adversarial justice” reading of Blakely: the fact that the federal guidelines were created by an unelected administrative agency may suggest that no part of this system ought to be salvaged. (Of course, as detailed in so many posts in this space, any and all of these visions of Blakely‘s principle has to be weighed against post-Blakely pragmatism. The NAFD brief is so potent because it works through the important pragmatic concerns in unique and effective ways.)

Putting all of this together, I have of late come to think of Justice Scalia’s decision in Blakely as the ultimate vindication of his dissent in Mistretta. This, in turn, leads me to wonder about other equally historic and consequential examples of a judicial “I told you so!”