A Booker laboratory of the district courts?

The comments here concerning Chief Judge Holmes’ intriguing opinion in Barkley (basics here) have been none too kind.  Though the opinion is a fascinating read, I do think Barkley could have better defended the decision to Blakely-ize the guidelines as Chief Judge Holmes is obviously wont to do. 

I think the outcome in Barkley would have been on more solid ground if it had adopted and built upon some of the ideas in Judge Cassell’s opinion in Wilson (basics here, commentary here and here).  As the commentors note, the opinion currently reads as a disagreement with the Breyer remedial majority and as an adoption of the dissenters’ proposed remedy.  However, I think Barkley could have said that to serve the uniformity principles championed by Justice Breyer, as well as to serve all the other principles codified in 3553(a) (including the command “to promote respect for the law”), a Blakely-ized system giving the guidelines very heavy weight will be more effective than a system built on judicial fact-finding and discretionary judgments.  In other words, rather than suggesting in Barkley that the dissenters had a better remedy, I think Chief Judge Holmes could have asserted that, even following Justice Breyer’s mandates and instructions in Booker, he believes a Blakely-ized system will better serve both the Court’s and Congress’s stated goals.

That all said, I find very interesting Barkley‘s effort to justify Blakely-ization based on the importance of showcasing this system to provide insights and information to the US Sentencing Commission and Congress as it contemplates post-Booker reforms.  The idea brings to mind, of course, Justice Brandeis’ advocacy for a “laboratory” of the states in his famed New State Ice opinion.  Especially since, as detailed in this speech, Justice Breyer is an obvious fan of Justice Brandeis, perhaps Justice Breyer would not be all that troubled by what Chief Judge Holmes is trying to do in Barkley.

Of course, a more important and immediate question right now is whether the Justice Department is troubled by what Chief Judge Holmes is trying to do in Barkley.  I imagine that Barkely is the kind of opinion that could prompt the government to seek mandamus in the Tenth Circuit.  But whether DOJ wants to go through that effort, and how the Tenth Circuit might respond, are all very interesting questions.