281. Accidental clarity

Today the Supreme Court issued its twelfth in a series of opinions issued since 1986 that, individually and collectively, fail - not just fail, but thoroughly, comprehensively, epically fail - to clarify constitutional limits on criminal sentencing.  "Twelfth" isn't an exaggeration - it might, in fact, be an understatement. 

The justices have accomplished something truly special: they've taken an area of the law that no one even thought about and turned it into something no one can understand.  Least of all the justices themselves, who by this point appear utterly lost in the labyrinth of their own construction - though, since the analogy to Daedalus's creation implies intelligent craftsmanship, maybe it would be better to say they seem as helpless and befuddled as a homeowner who's forgotten the code to his own alarm system.

Here's Professor Berman puzzling over some of the many opacities of today's Rita opinion.  And here he is puzzling over others.   Here are the Akin Gumpsters over at SCOTUSblog, still hands-down the funniest law blog name.  Lyle Denniston even figures out a way to argue that the opinion with the two votes ought to be considered the "real" majority, rather than the one with the six votes.

(I think most of the confusion arises from the lawyer's automatic assumption that when the Supreme Court issues multiple opinions on a given subject, those opinions must be doctrinally consistent.  The phrase "double standard" does much to clear away the fog: state sentencing statutes are judged much more harshly than the federal sentencing system.)

Today's Rita opinion was the second this year to muddy the issue.  (See post 228 and post 230.)  By the Court's standards, this is a frenetic pace.  Justice Scalia - author of Blakely v. Washington, the 2004 opinion that first made me suspect he had suffered a stroke - was moved to something close to despair about what he and his colleagues had wrought, pointing out some of the many ways the Court has contradicted itself in just the last few years.

But it was left to Justice Souter to experience an epiphany of self-knowledge extremely rare in people as cosseted in institutionalized flattery as Supreme Court justices.  Needless to say, none of his colleagues joined his lonely dissent.  Souter wrote that "it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by" the Court's flailing about. 

But even in his formulation of the question you can see Souter flinch.  "Judicial labor", indeed.  The burden of the justices' inability to figure out what they're trying to say doesn't fall primarily on judges, but on defendants sitting in jail, and their lawyers, and prosecutors, and state legislators wondering whether it's necessary to rewrite their state's sentencing statutes. 

At least we can give a confident answer to the last question:  The Court has done New Jersey, Washington and California so far.  That means 47 more to go.  Plus Puerto Rico and the District of Columbia.  And Guam.  If all goes according to schedule, we should be able to get a definite answer to you by 2080 at the latest, Senator.

As to what has been accomplished in real terms?  Elvis Costello sang about it on his first album.