More prognosticating on Booker and Fanfan (and Roper)

Attorney Mark Stancil, who produces a newsletter on Supreme Court cases and whose insightful thoughts on the Booker and Fanfan oral argument were previously provided by Crime and Federalism here, has now shared his latest thoughts on the decisions for which we are all waiting.  Here is his intriguing thinking:

Shocking Booker/FanFan Prediction

Quite frankly, I’m surprised these monsters haven’t come down already, particularly in light of Acting SG Clement’s opening statement at oral argument that the federal system averages 1,200 sentencings per week. This is shaping up to be a nasty logjam, but I predict the end is in sight. Official word from the Court’s opinion/weather hotline is that one or more decisions will be handed down on Monday (also, highs in the mid-40s, chance of showers). I figure the Apprendi/Blakely majority will serve up these stocking stuffers just in the nick of time.

For your amusement, I’ll also take a stab and say Justice Thomas is writing the majority opinion on question 1 (whether Blakely applies to the Federal Sentencing Guidelines). Why?  Assuming the Blakely lineup holds, Justice Stevens would be the assigning Justice and methinks he’d be inclined to let his infrequent ally take a shot after giving Blakely to Scalia.  And Souter already has a majority assignment from the first week (KP Permanent Makeup), and surely that would have been on the back burner if he was also slogging through Booker/Fanfan. Ginsburg also has a first-week majority (Koons Buick).

But why wouldn’t Stevens just keep it for himself?  Because I’d wager he’d expect to be knee deep in Roper v. Simmons (execution of juvenile offenders) on one side or the other, and would probably recognize the value of letting the always thorough Thomas plow through the minutiae of the Sentencing Reform Act and the Guidelines. Thomas’ authorship is also likely to have started a war of words with Breyer, which would account for the extra weeks of back-and-forth (and, perhaps, the false rumor circulating around Washington a few weeks ago that the opinions were coming down). I make no predictions on the severability issue, except that there will be at least 4 separate opinions and bodies flying every which way.  All of this, of course, is just half-baked tea-leaf-reading by a guy hopped up on generic Day-Quil.

UPDATE: This post has prompted the (magical?) mystery blog, previously discussed here, to post another astute analysis (following up this earlier effort) concerning what might be going on inside chambers as Booker and Fanfan get hammered out.