Osler's Razor

I agree with one of the comments on Berman's blog. The real beast here is the presumption of reasonableness, and that is in Rita's case, thank goodness.
 

If the decision was going to be groundbreaking, I don't see why the Court couldn't grant cert. to a nearly identical petition, decide it summarily, substitute the petitioner's name for Claiborne's, and adjust the facts appropriately.

If what B says is true that may not be necessary. Either way I think the Court will say what it wants to say in some way, shape or form. From what I gather, the law is the stuff of humans and humans don't like to spend months working on something - such as an opinion - to have it be for not.

Then again, I know little to nothing about the Supreme Court and spend a lot of my time blogging for not so you never know.
 

The problem is that there isn't a "nearly identical petition," because they were denied cert or not filed once Claiborne was accepted. Our Spears petition is one of the closest, but of course we spent a lot of time in the briefs describing how it was NOT like Claiborne, and presents a different question (which it does). No one seeks cert under the slogan "It's just like that one you are already considering!"

I think that they will decide Rita alone, include dicta that relates to out-of-guideline proportionality, and then take a crack/powder case for the fall term.
 

I don't see how the resolution of the presumption of reasonableness question cannot effectively deal the the Eighth Circuit's Claiborne/Spears heresy.

As I've said before (and as is apparent from the oral argument in Rita/Claiborne), Mr. Justice Scalia has not given up on overruling the remedy opinion in Booker, and I don't see how the presumption of reasonableness can be resolved without saying 1) we really meant what we said in the Booker remedy opinion and therefore the presumption is okay, or 2) we really screwed the pooch on remedy, Scalia was right, and blah, blah you must blah.

Either way, Congress, increasingly the waiting branch of Guv'ment, needs to get off its collective arse and move on reforming the 3553.
 

My proposed order:

ORDER

The petition for a writ of certiorari is granted. The parties are directed to brief the following question:

Is a district court free to disregard a sentencing commission policy statement in favor of other 3553 non-guideline sentencing factors?

Mark W. Osler, Esq., of Texas is appointed to sit with the Court on this case.
 

That would be fun. But, uh, if it's Spears, that's my case, man!

B, I think that there is a broad question, reasonableness within the range, and a narrow one, which is whether the 100:1 ratio must be followed strictly even under discretionary guidelines (which is what the 8th said in Spears).
 

That's really too bad, about Claiborne's death. Tragic, after all that work on the case--tragic in a literary kind of way, how life really is stranger than fiction. Who would have expected the case to take that turn? Surely it won't be a dead end, though.
 

I know that picture. It is a two pens. And somehow art.