In the first Dean's Forum for the 2004-05 year, Professors Richard Fallon, Richard Parker, Carol Steiker, and Larry Tribe discussed the future of the longest continuous Supreme Court since the early nineteenth century, with no justices having retired in ten years.
"An institution that hasn't had any fresh air for ten years is probably in trouble and that means that probably we're in trouble," said Parker. "We should amend the constitution to impose term limits on justices Ð perhaps ten years."
"Life tenure was fine when life was short," summarized Kagan, who served as the moderator.
"Or when you're a professor," said Parker.
The Supreme Court's new term began on Monday with an added hearing regarding Blakely v. Washington's effect on the Federal Sentencing Guidelines. The Supreme Court's decision in late June ruled that Washington's state sentencing guidelines were unconstitutional, leaving open the question about the constitutionality of the federal sentencing guidelines.
"The weird thing is that the majority said nothing about the federal sentencing guidelines," commented Steiker. "The dissenters are the ones that said that this means that the federal sentencing guidelines are unconstitutional."
While the majority declined to overturn outright the federal sentencing guidelines, applying the logic of the majority has still led many individual judges to conclude that the federal guidelines are unconstitutional. Thus, many federal judges have been giving three separate sentences Ð one in line with the guidelines, one in case the guidelines are partially constitutional and partially unconstitutional, and one in case the guidelines are declared completely unconstitutional.
"The problem is that thousands of people are being charged with crimes and judges don't know what to do: should they be sentencing under the guidelines?" asked Steiker.
Though the Supreme Court declined to come back from its summer vacation to decide the foreseeable crises regarding the federal sentencing guidelines, it agreed to hear arguments about Blakely's applicability to the guidelines early in its calendar, adding two hours of argument from 1-3 p.m. on Monday to its normal three hour workday of 10-1 p.m.
"I don't usually feel sorry for the court," Steiker said, "but...as I was teaching at 2:30, I thought 'ha ha, let them do some work.'"
The Court's decision is uncertain, but both defense attorneys and governmental lawyers believe that the oral arguments favor their side. Defense attorneys believe that the federal guidelines are unconstitutional because they leave important sentencing issues at the discretion of the judge instead of juries. The government argues that the federal guidelines are constitutional, and even if they are not, they should be sent back to Congress to be modified to apply the statutory maximum as the maximum range, an option that will hurt criminal defendants while technically compliant with the Court's decision. The final option is to consider the Guidelines as a recommendation without binding power, an extremely unlikely possibility, according to Steiker.
"The defense is very confident that the federal guidelines will be struck down after Blakely," commented Steiker. "This will return us to the day of before the Federal Sentencing guidelines of wide disparities, particularly along racial lines."
In Blakely, the court held that the Sixth Amendment right to trial by jury requires that any fact, like the quantity of drugs in a narcotics case, that leads to a sentence greater than the maximum the defendant could otherwise receive must be proven to a jury beyond a reasonable doubt. But critics of the Guidelines do not limit their critique to its Sixth Amendment constraints, and instead assert that the Guidelines are too harsh Ð though the alternate options may seem harsher.
"The Supreme Court decides about a dozen criminal cases each year but rarely does it drop a bomb the way it does in Blakely," said Steiker. "It is a huge mess."
The Blakely mess turns on the role of the Supreme Court in shaping the law, whether the court should have its own opinion or be a reflection of public opinion.
"Almost nobody believes anymore that the constitution has an objective meaning that can be determined, which is why it's a fight who to appoint to the court because we know it's political," asserted Parker. "In the 1970s, the Court seemed for a time to have ended the death penalty in the United States, because the justices had sensed that the American people were against the death penalty. When it turns out they were wrong, they pulled back because they thought that's not the role they should be playing in a democracy. This current group of justices do not seem to see their role in the same way, which I find disturbing."
"But that way the Court's function is no more than poll taker, a figure in the wind," countered Tribe. "I don't think that's the role that I would like in any way to imagine."
Tribe is currently preparing arguments for a first amendment case before the Supreme Court this coming term as to whether a governmental tax on meat to finance beef advertisements infringes on the beef industry's free speech rights.
"The argument I'm making is whether you call it government speech or not is not dispositive," Tribe stated, comparing his case to New Hampshire's license plate slogan of Live Free or Die. "New Hampshire can have its license plates say Live Free or Die, but it doesn't mean that they can make private cars carry it. It does not mean that they can make someone as a condition of pursuing a livelihood as a rancher sign on to that particular message."
Fallon predicted that though Tribe will likely win his Supreme Court argument, he felt that he should not win.
"The person taxed against his will may have rights," commented Fallon. "But they don't associate themselves with the idea of being articulated. É Meat producers can take steps to disassociate themselves with that message. I do think he'll win but I think he ought not."
In reflecting about the Court's accomplishments this past year, both Fallon and Parker expressed disappointment that the Court had not addressed the "under God" case on its merits.
"If they had reached the question on the merits, it is absolutely a foregone conclusion that they would have found someway to uphold the unconstitutionality of the pledge of allegiance even though they would have to do a bit squirming," asserted Fallon. "So it's not just the other branches of government playing back and forth with the court playing in the background, but the court is a political player too."
This "squirming" that the Court engages in to square their current opinions with the problems of law or precedent is particularly noticeable in a continuous Court, according to Steiker.
"The problem for the Court is that the Court really has to stand on its head to distinguish its prior opinions," commented Steiker. "It's a tough position to be in and you have it less when the court turns over more. Justices can say 'I never agreed with that prior decision.' I'm not sure whether it's good to hoist them on their own logic or to free them from it but it's a cost or benefit of a continuous court."
