December 10, 2007 2:49PM

The End of the Year (but not the Term) at the Supreme Court

Today marks the last day of official business for 2007 at the Supreme Court. The Court released opinions in three cases that were argued this term, which join the two last week as the only rulings on the merits so far. (The very first case argued this term, NY School Bd. v. Tom F., was affirmed without an opinion because the court split 4–4.)

Two of the cases decided this morning definitively clarified that the Sentencing Guidelines are really not binding on the sentencing court. In Kimbrough v. U.S., the Court, by a 7–2 majority speaking through Justice Ginsburg, reversed the Richmond‐​based Fourth Circuit and found that a district court may impose a sentence for a crack cocaine offense that departs downward from the Guidelines’ 100‐​to‐​1 ratio for crack versus powder cocaine sentences.

In Gall v. U.S., a 7–2 majority speaking through Justice Stevens repeated that appellate courts should review sentencing decisions that depart from the sentencing guidelines using the highly deferential abuse‐​of‐​discretion standard, and that the departure in this particular case was not unreasonable (reversing the St. Louis‐​based Eighth Circuit).

In both the above cases, Justices Alito and Thomas were the lone dissenters. Justice Alito was concerned that the district courts were not deferring sufficiently to the Sentencing Guidelines (which, while non‐​binding, must still “be taken into account”) and worried that sentencing disparities would gradually increase. Justice Thomas continued his disagreement with Booker (the case that made the guidelines merely advisory) in rejecting the new “reasonableness” standard.

Also of note is that Justices Scalia and Souter filed concurring opinions in the above cases. Not unreasonably and as he was in his dissent from Booker, Justice Scalia continues to be concerned that judges are unconstitutionally finding facts relevant to sentences. Justice Souter, who only wrote separately in Gall but stated that his views applied to Kimbrough as well, suggested that

[T]he best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines … but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.

Strangely, I agree with Justice Souter.

Finally, in Watson v. U.S., a unanimous Court through the pen of Justice Souter held that one does not “use” a gun for purposes of sentencing enhancement when that person receives a gun in trade for drugs. Justice Ginsburg filed a concurring opinion stating that, according to today’s decision, it is better to receive than to give when the subject is guns and urging the Court to adopt Justice Scalia’s dissent from an earlier case that found that trading a gun for drugs is “use.”

I agree with Justice Ginsburg — and guarantee you that neither my agreement with her nor hers with Justice Scalia is the start of a new trend.

One interesting observation is that in all three opinions decided today, Chief Justice Roberts was in the majority and in all three he used his right to assign authorship to the three most liberal members of the Court. (Of last week’s two opinions, one also went to Ginsburg, and the Chief wrote the other himself.) This may mean one of three things: 1) Chief Justice Roberts is trying to curry the favor of his liberal colleagues; 2) Ginsburg, Stevens, and Souter write opinions faster than their colleagues (unlikely because the opinions so far have been simple and uncontroversial); or 3) nothing at all. 

Overall, the Court has now granted cert in 60 cases (which, believe it or not, is 5 ahead of last term) and has heard argument in 26 of them — plus one case of original jurisdiction involving a suit between two states.

The Court’s next official business day, when it may issue orders granting and denying new cases will be Jan. 7. That day will also see the Court’s argument calendar start the New Year off with the explosive case of Baze v. Rees, which considers the constitutionality of a certain kind of lethal injection (and the granting of cert on which has effectively stayed all executions by lethal injections nationally). The next time we may see decisions on the merits is Jan. 8.