Commentary: A Justice-by-Justice Review of Gall and Kimbrough

Throughout today and tomorrow, we’ll have commentary on the decisions this morning in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Douglas A. Berman, a professor at Moritz College of Law at The Ohio State University and proprietor of the blog Sentencing Law and Policy, where this entry is cross-posted.

There is so much to say about the substance of the rulings in Gall and Kimbrough, and I will likely need a few days to unpack all the important particulars. Here I want to do a quick Justice-by-Justice review of what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court’s work on any number of future sentencing issues. So here goes:

Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory. Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.

Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta. His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).

Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion. As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding any particular sentencing ax. As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.

Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment. Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of “as-applied constitutional challenges to sentences.”

Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied-piper down the road of advisory guidelines, express their aggravation with the tangled web that the Booker remedy has weaved. Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he’s just not going to take it anymore.

Justice Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text. Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist “could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out” in 3553(a)(2).