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Category: Courts
Posted by: A Waco Farmer
Guest Blog

A few weeks ago, Bosque Boys friend, Gossenius, traveled to the nation's capital to witness arguments before the Supreme Court pertaining to his legal specialty, sentencing. I asked him to reflect on his experience for us. Thank you, Gossenisus, for this excellent piece, which is both meaningful and provocative.

We are in sad need of a little majesty. I say that as someone who usually eschews formality, and who is grateful that we live in a democracy and not in a monarchy of any sort, with the false elevation of an individual by the mere accident of birth.

What a little majesty can counteract, however, is the farce that our government has become. The legislature has been reduced to a crude reality show, with the driving motivation being to hurt the other side and to grab as much money off the conveyer belt of taxation to earmark for your own. The presidency has now been damaged by undeserved arrogance for four consecutive terms, held by two men who commonly betray not an ounce of humility even while pronouncing to all the importance of their Christianity.

What neither the legislative nor the executive branch gives us is a particular, necessary form of majesty—that of actual debate and consideration of an issue, where the people speak to the government as a sovereign of which they are a part. People in our country are kept away from their political leaders but for discussing superficialities, we have no question time in our Parliament, and our leaders’ public moments seem thoroughly bled of spontaneity and humanity.

There is still some majesty, though; we do still have the Supreme Court. I had the privilege of witnessing the Court in action for the first time two weeks ago, as they heard arguments in the case of Cunningham v. California, which involved the constitutionality of the California sentencing system. I was able to get a ticket to sit up front from Justice Souter’s chambers, close enough to smell the attorney’s fear.

The Supreme Court’s courtroom is not large. I have argued cases in four federal Courts of Appeal, and many of those rooms were about the same size. Nor is the décor of particular note; ornate carvings and huge draperies are pretty much the norm for appellate courts. What sets the Supreme Court apart is something more subtle: An aura of gravity reflected in the solemn movements of the marshals, the dress of the visitors (coat and tie were the norm), and the air of anticipation as the hour approached.

That air of solemnity became more pronounced as people took their places. The invited guests of the Justices sit to the right, the press to the left. Nina Totenberg arrived, and warmly greeted some of her colleagues. On the benches with me, I recognized a few other professors and sentencing specialists. There was a hush as the attorneys arguing the case swept into the room, clutching folders as they settled into the front desks. A respectful silence settled into the room for the next five minutes as we all waited anxiously for the arrival of the Justices.

And in they came, on the traditional call of “Oyez, oyez!” It almost seemed like we should applaud, the entrance was so grand. But it was not that kind of show. The Appellant approached the podium, and we were off.

It was quickly apparent that there is a reason that these guys (and Ginsburg) have risen to the level of the Supreme Court. Their exchange was witty, biting, informed, and meaningful. It was, in short, the best and most intense exchange of ideas on the topic I have heard in any forum. The attorneys almost faded into the background as the justices took on one another. The brightest minds seemed to be the ageless Stevens and uproariously brilliant Scalia, who is more entertaining (and probably smarter) than anyone you will see analyzing the things that he says. Even those of us who work in the field, who know the issues, who interact through scholarship with the Court, seemed taken aback by their ferocious attack of the issues.

At one point, Scalia, Stevens, and Roberts were finishing one another’s sentences, trading off policy considerations in a furious shorthand: “[Scalia] We could say the middle option is presumptively reasonable… [Stevens] Or we could require jury findings… [Roberts] Which could lead to a half-dozen jury trials in every case.” It was better than football.

Oh, you can complain all you want about “legislating from the bench,” but that is hardly a partisan issue. If you want to see some amazing judicial legislation, tune in for next week’s argument in Phillip Morris USA v. Williams, in which your heroes of the Right will want to judicially impose caps on punitive damages—something that seems to be well within the authority of Oregon’s legislature. The Court is and will be a check on the other branches of the government, and the mechanism is sometimes as rough and crude as the wrestling we see between the other branches. But the spectacle of it, the competing wisdoms on display—let’s not let that go too easily in a nation hungry for something with both grit and meaning.


27/10: More 100:1

Category: Courts
Posted by: A Waco Farmer
Good friend of the Bosque Boys, Mark Osler (real name), who maintains Osler's Razor is featured on NPR's Morning Edition this morning. He speaks on something we have covered in the past (see this post): the great disparity in sentencing guidelines in regards to cocaine possession versus crack cocaine possession, which also correlates to a racial disparity in sentencing.

Osler is a Baylor Law professor and former federal prosecutor; he specializes in sentencing.

The NPR story: "Crack Cocaine Sentencing Rules Hit 20."

For more information:

Douglas Berman's blog on sentencing.