Booker and provocation of Congress

POST FROM RON WRIGHT:
Obviously, the Justices are not involved in a chess match with Congress. They have not anticipated (and cannot anticipate) three moves ahead. But it also seems likely that the Justices gave some thought to the likely congressional reaction to their ruling. Which of the two remedies the Court debated make a quick congressional response more likely?

At first blush, I would guess that the Stevens/Scalia remedy — keep the binding guidelines, but add jury factfinding or waiver where necessary — had the best chance to create a stable outcome that Congress would accept, at least in the short run. DOJ had already learned to maneuver in this type of system, and treated this as a fall-back position in their arguments to the court.

On the other hand, the Breyer remedy — advisory guidelines that still must be consulted in each case — may itself produce only incremental change. In the short run, all the courtroom actors know what to do under this system. Perhaps judges will change sentencing patterns slowly enough, and in small enough increments, that they will not provoke a reaction from Congress.

On the third hand, there may be members of Congress who are anxious to amend the federal sentencing laws, and it does not matter to them which of the different remedies the Court chose. Whatever the opinions say, they create an opening for change.

Any thoughts from readers on which of the available remedies was the most or least likely to provoke a major and immediate congressional restructuring of the sentencing laws?

LATER ADDITIONAL COMMENTARY FROM DOUG BERMAN:
Ron and the first 17 comments raise many good points, but on this front I particularly want to spotlight that the development of federal sentencing law and policy is more like chinese checkers than chess, because we have multiple players, not just the courts and Congress.  And the player who truly has the biggest marbles is the Justice Department, a fact which was demonstrated by DOJ’s ability to get the Feeney Amendment enacted (and which has been astutely stressed by Professors Frank Bowman and Marc Miller in their post-Feeney commentary on the state of the federal system).

What this all means is that, were the Court being truly pragmatic in Booker, it would also be concerned about what remedy would be likely to provoke DOJ.  And, on this front, I think we can identify a clear difference in the Stevens and Breyer remedies.  DOJ had indicated post-Blakely, both through its litigation strategies and various official statements, that it would not be happy with the Stevens’ approach of “Blakely-izing” the guidelines.  But I have a feeling that DOJ may be content, at least in the short-term, with Breyer’s remedy (especially if DOJ can get some quick appellate rulings that following the guidelines is per se reasonable).

Here, then, is one of the many great ironies of Breyer’s opinion for the Court in Booker.  Breyer claims, quite expressly at p. 14 of his opinion for the Court, that the Stevens remedy would give prosecutors more power than his remedy.  But if this was really true, why would DOJ resist so greatly the Stevens remedy and essentially seek the remedy that Breyer created for the Court?

(Tellingly, in Part IV of his opinion for the Court, Justice Breyer recognizes that his remedy “coincides significantly” with DOJ’s proposed remedy and that he is rejecting the defenses’ remedies which accord with Justice Stevens’ approach.  But, echoing the debate between Justices Scalia and Breyer in Blakely, Breyer apparently continues to believe that prosecutors gain power when defendants have more rights at sentencing, even though the litigation strategies of both DOJ and the defense bar suggests otherwise.)