9 Justices split 5 to 5!

There are nine Justices on the Supreme Court. An official "Opinion of the Court" requires the concurrence of five of them. Given that, it is hard to imagine how there could be two "Opinions of the Court" in the same case. Well, it happened last week in UNITED STATES v. BOOKER. The trick: Justice Ginsburg joined in both opinions.

Freddie Booker was convicted by a jury of possession of 92.5 grams of crack cocaine. Under the federal sentencing guidelines, the maximum sentence for possession of 92.5 grams of crack was 262 months. However, at sentencing, the Judge found that Freddie also had another 566 grams of crack, although evidence of this additional (or larger) stash was never presented to the jury. Applying the sentencing guideline to this larger stash resulted in an actual sentence of 360 months. Freddy appealed arguing that tacking an extra 10 years on to his sentence based on facts found by the judge (using a preponderance-of-the-evidence standard) rather than by a jury (using a beyond-a-reasonable-doubt standard) violated his Sixth Amendment right to trial by jury.

Five of the Justices (Stevens, Scalia, Souter, Thomas and Ginsburg) agreed, so the first "Opinion of the Court" held that it was constitutionally impermissible for Congress to require a judge to impose a sentence outside the range authorized by the Guidelines for the facts found by the jury.

The other four Justices (Breyer, Rhenquist, Kennedy and O'Connor) disagreed strongly. Yet, rather than simply taking their medicine and writing their dissents, they sought to make an end run around the ruling by "excising" the statutory provisions making the guidelines mandatory. They were sucessful in doing this becuase Justice Ginsburg joined in this opinion as well. The immediate effect of this ruling is to make the Guidelines purely advisory. The real effect, though, is to allow trial courts to do exactly what the majority held they could not be required to do consistent with the Sixth Amendment: consider "facts" not found by the jury in determining a sentence. As explained by Justice Breyer:

[Since the Court has now held that the Guidelines as written violate the Sixth Amendment], we must determine which of the two following remedial approaches is the more compatible with the legislature's intent as embodied in the 1984 Sentencing Act. . . . One approach, that of Justice Stevens'. . ., would change the Guidelines by preventing the sentencing court from increasing a sentence on the basis of a fact that the jury did not find (or that the offender did not admit). The other approach, which we now adopt, would . . . make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct.

It is plain from the rest of the opinion that the "real conduct" Breyer wants the court to consider in Freddie Booker's case is the fact that he actually had 655 grams of crack rather than 92.5 grams as presented to the jury. In short, a majority of the Justices held that it violated the Sixth Amendment for Congress to require a trial court to consider facts not presented to the jury but a majority of the Justices also held but it did not violate the Sixth Amendment to allow -- even encourage -- the trial court to consider those exact same facts. Justice Ginsburg is the only Justice to agree with both of these holdings. Yet she writes not a word of explanation.

I do not have any big problem with this outcome, since I have never been a big fan of determinate sentencing. But, the process by which this outcome was reached -- and particularly Justice Ginsburg's role in it -- seems more than a bit bizarre.