Joel Jacobsen

Last Monday's Cunningham decision striking down California's sentencing statutes, while sadly inadequate as legal reasoning, is marbled with the ridiculous like an artery-cloggingly tender steak.

And if you think that's bad, just listen to this: "Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless." 

I'm sorry, but a person who can publish a sentence like that in all seriousness just doesn't deserve to be taken seriously.  Certainly not as seriously as Justice Ginsburg takes herself.  (But then, nobody deserves to be taken that seriously.)

Ginsburg's opinion shares the two qualities that Orwell said could be found in most modern political writing.

The first is staleness of imagery; the other is lack of precision. The writer either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not. This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing. As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse.

A person who writes about a recipe that makes an inanimate object's teeth fall out is obviously not thinking about what she's saying in any sort of precise or concrete way.  As proof of this,  note that Ginsburg doesn't claim to be concerned about making the sixth amendment toothless.  She just doesn't want to make "our Sixth Amendment case law toothless."   She actually comes right out and says - almost certainly without consciously intending to be so self-revealing - that Cunningham is not about the Constitution.  It's about the Court. 

The opinion contains a passage "vacuously, smugly, and unconsciously foolish" enough to deserve special recognition.  Ginsburg twice says that the Supreme Court's precedents have created a "bright-line rule" and then reports that the California Supreme Court opinion "stat[ed], remarkably, that '[t]he high court precedents do not draw a bright line.'"  It's that condescending little word "remarkably" that elevates this to a high level of judicial fatuity.

("Bright line" is one of those odd bits of legal jargon that actually express rather than conceal their meaning.   The foul line is a bright line, and so is the blue line.  You're on one side or the other of a bright line - there's no middle ground.)

The California statute was, according to Ginsburg's opinion, unconstitutional because it permitted "judicial factfinding" when imposing a sentence.   However, just three years ago the Court wrote that the sixth amendment allows "judicial factfinding" when imposing a sentence.  The difference is that in the latter situation, the judge is merely "implicitly rul[ing] on those facts he deems important to the exercise of his sentencing discretion."  Everyone clear on that bright-line distinction?

Further clarifying the bright-line rule, Justice Ginsburg herself cast two votes that, many people have noted, contradict each other.  That in itself isn't remarkable: many other justices have done the same.  But what's different about Ginsburg's accomplishment is that she cast contradictory votes in the same case!  Try it yourself sometime and you'll acquire greater admiration for the accomplishments of this remarkable woman.

She achieved the feat in Booker, involving the much-loathed federal Sentencing Guidelines.   As Justice Alito observed in last Monday's case, "[t]he California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in [Booker]."

Ginsburg disagrees with Alito, but her disagreement makes his point: she says the systems are different because the California system (bad) required the judge to choose between three possible sentences based on his or her evaluation of the offense and offender, whereas the Court-modified Guidelines (good) result in a specified sentence unless the judge thinks an adjustment is warranted based on his or her evaluation of the offense and offender.

Everyone clear on that bright-line distinction, too? 

For Ginsburg to claim the Court's recent precedents establish a "bright-line rule" might not qualify as fatuous by itself - it could be defended as harmless wishful thinking, a morale-boosting memo to herself, a way to pretend the Court isn't flailing around making a mess of things for no particular purpose.

What elevates her opinion into the level of fatuity is the arched-eyebrow of her "remarkably".   Sorry to break the news to you, your honor, but your court's precedents still don't draw a bright line.  They are, in fact, as self-contradictory as your own two votes in Booker.

But Ginsburg tops her fatuity with impressive intellectual dishonesty.  That combination makes Cunningham the first-ever opinion to rate inclusion in both the Fatuity Watch and Intellectual Dishonesty Watch categories

There was a time, not so very long ago, when justices of the Supreme Court wrote (and acted as if they believed) that "the highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law".   Justice Ginsburg's dissent in Bush v. Gore criticized the lawless majority opinion on just that ground: Chief Justice Rehnquist, she wrote, had unconstitutionally asserted the power to "revis[e] a state court's construction of state laws". 

The core of her holding in Cunningham, however, is that the California Supreme Court misinterpreted California's sentencing laws.  The California court interpreted its state's sentencing statutes to avoid a  constitutional problem - exactly as the U.S. Supreme Court itself did in Booker.  But Ginsburg revised the state court's construction of state laws.

Ginsburg doesn't even attempt to explain why it was wrong as a matter of constitutional principle for Bush v. Gore to revise Florida's interpretation of its election laws, but right for Cunningham to revise California's interpretation of its sentencing laws.  (It's not nearly enough to say some constitutional right is at stake - the guilty five pretended to believe that in Bush v. Gore, too.  Justice Kennedy is still trying to keep up the pretense.) 

But then, Ginsburg never explained her contradictory opinions in Booker, either, unless declaring last Monday that they established a "bright-line rule" counts as an explanation.