Clement is undeterred. "Let me use my fraud example, and you may see a difference," he pleads. He argues that if there are thousands of victims of a telemarketing scheme, the jury could not find the sentence-enhancing number of crimes unless "they called in every one of the 2,000 individuals who had been defrauded."
Stevens doesn't buy it. "You don't think that could be proven with two or three witnesses? I'm not persuaded." To which Scalia gleefully adds, "Is it better if the judge is just guessing?"
Breyer steps forth with a list of "four categories of things that are difficult to prove to a jury," including No. 2, misconduct, like a defendant's perjury that occurred during trial; and No. 4, things "too difficult to explain to a jury," among which he includes "brandishing." But Breyer also seems to realize that the guidelines are doomed, so he shifts to a pragmatic resolution to the problem of what to do next. He suggests reading the rules "so that 'shall' would mean 'may,' and the guidelines thus become 'permissive.' " Permissive means the guidelines would become, er, "guidelines" rather than definitive rules. He wonders, "What would be wrong with that approach?"
"Nothing," says Clement.
Breyer interrupts him—"I thought of something else that may be wrong," he says. If judges were all interpreting permissive guidelines differently and appealing those decisions, "We would become the sentencing commission." Breyer sighs. Comic pause for two beats, then, "I thought I'd escaped."
Justice Sandra Day O'Connor, the Jeremiah of the dissenters in Blakely, speaks very little today. What she does say is telling: "This is so contrary to what Congress intended," she sighs. "There is no evidence they wanted the guidelines to be advisory." The guidelines were supposed to create uniformity in sentences and reduce judicial discretion. If they become Helpful Hints for Judges, that broad discretion is inevitable.
Christopher Kelly from Madison, Wis., has 30 minutes to argue for his client, Freddie Booker, whose drug case was reversed and remanded by the 7th Circuit. Breyer unloads more than a decade's worth of anguish: His first hypothetical involves at least four parts and is posed at least three times.
Justice Breyer really likes those guidelines.
Rosemary Scapicchio from Boston argues for Duncan Fanfan, and, like Souter, her New England twang warms the heart. "Law" becomes "Lawr." It's a beautiful thing. Scapicchio does a slightly better job with Breyer's anguish and a much better job explaining that the court needn't eviscerate the guidelines altogether—it must only ensure that juries, not judges, decide sentence enhancements. As she argues, it becomes clear that these advocates aren't here to persuade the court of anything. Scalia and Stevens are pile-driving Breyer and the chief justice, and one can only imagine who'll have who in a headlock when conference is over.
The problem is not really a constitutional one anymore; it's pragmatic. And as O'Connor suggests, that's probably for Congress to work out. More than one justice takes comfort in the fact that whatever solution they opt for is "interim" because Congress will fix the court's fixes anyhow.