But how do you enforce a squishy standard? And how do you build discretion into a rigid rule? It's like a snake swallowing its own tail or a maze that inevitably leads back to the beginning. Jeffrey T. Green, arguing on behalf of Gall, tells the court that appeals courts may look at a broad range of cases to determine whether a downward departure is out of whack. "But what's the point of looking at a broad range of cases if the appeals courts can't do anything about it?" asks Roberts.
Breyer asks: "What words should be written that would lead to considerable discretion but not total discretion, so the goal of uniformity is not totally destroyed?"
Roberts asks what's wrong with saying that sentences that are out of the norm need to be grounded in good reasons. "Because it sets a presumptive sentence that is the guidelines sentence," says Green. "It tells the district court you're taking a risk for going outside of the guidelines."
After beating up on Green because standards are not rules, the court takes aim at Deputy Solicitor General Michael Dreeben, because, well, rules are not standards.
Scalia asks how Dreeben can concede that the guidelines are advisory, yet make them "pretty much mandatory." He adds: "You are just blowing smoke when you say the guidelines are advisory. Your criterion for fairness is the guidelines!" Stevens adds: "You're saying a sentence is not unreasonable if it's outside the guidelines, but it's unreasonable if it's dramatically outside. You just can't tell me what 'dramatically' is."
Things get even murkier in Kimbrough, where Dreeben takes the position that there is something magical about the 100-to-1 crack/powder disparity that makes it even less advisory than the rest of the advisory guidelines. Stevens hammers away like Dreeben is Mr. Spock from Star Trek, begging him to offer some formula for downward departures that isn't cold and mathematical. Breyer almost weeps for the dying guidelines.
Scalia concludes that "it may be impossible to achieve uniformity in guidelines that are advisory … which is why Congress made them mandatory." Later he says, "We're trying to develop a rule that can be applied sensibly. ... You haven't given us a rule. … If I were a Court of Appeals judge, I would have no idea when I could [depart down from the guidelines] or when I could not."
So just to catch you non-Booker people up on what you've missed in the last few years: There used to be a lack of uniformity in sentencing. Congress created sentencing guidelines. The court decided the guidelines were merely advisory. Appeals courts said sometimes advisory guidelines are still mandatory. District courts got confused. And now the high court asks the parties to make immutable rules out of standards, and flexible standards out of rules. Kimbrough and Gall think a good rule is that the guidelines should go away. The Justice Department thinks a good rule is that the judges should go away. And the court? It may finally have to pick a side.