First reactions to the Booker/Fanfan oral argument

Though I will need many, many posts to fully capture my take on today’s oral argument, a few moments of wireless access allow me to provide some quick first reactions.

First, I agree with Tom Goldstein’s post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after concluding Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, and this may be a critical concern for the Justices as they work through the severability question. (This also lead me to reiterate the plea I made here for the US Sentencing Commission to shed more light on this issue by making widely available whatever data it has assembled).

How (and when) the Justices will sort through the severability matters remains the biggest question in my mind after hearing today’s arguments. More commentary — a lot more — later tonight.