hen the Supreme Court struck down state sentencing guidelines last spring in Blakely v. Washington, federal judges prepared for the worst. Since the federal and state sentencing guidelines are, for all practical purposes, indistinguishable, many judges expected that the Court would strike down the federal guidelines as well. This, they imagined, would throw the entire federal justice system into chaos by forcing thousands of defendants to be resentenced. And, by requiring juries, rather than judges, to take the lead in determining sentences, they feared that the Supreme Court would further reduce the relevance of district judges in their own courtrooms, continuing the assault on judicial discretion that Congress began two decades ago. 

But, in United States v. Booker, decided last week, an unexpected defection by Justice Ruth Bader Ginsburg caused federal judges to celebrate by e-mail with surprise and relief. Ginsburg joined Justices Antonin Scalia, David Souter, John Paul Stevens, and Clarence Thomas in holding the federal sentencing guidelines unconstitutional. But, instead of replacing the guidelines with an even worse alternative, as lower courts had feared, the Court endorsed a remedy that almost no one anticipated. In a move that Frank Bowman, a law professor at Indiana University, accurately described as "a remarkable act of judicial jujitsu," Justice Stephen Breyer persuaded Ginsburg to join him and Justices Sandra Day O'Connor, William Rehnquist, and Anthony Kennedy in declaring that the federal sentencing guidelines could be preserved as long as judges treat them as advisory rather than mandatory. In a dramatic and creative gesture, Breyer managed to snatch back for federal judges all the discretion that Congress denied them in 1984, when it created the sentencing guidelines and made them mandatory. 

Whatever can be said for Breyer's solution as a matter of law, it makes a lot of sense as a matter of policy: The sentencing guidelines had become a straitjacket that was leading even the most conservative district court judges to lament the draconian sentences they were forced to impose. But, as Breyer noted, "[T]he ball is now in Congress's court," and Congress can either endorse his solution or replace it. The best thing Congress could do, in the short term, is to wait and see whether judges exercise their new discretion responsibly by choosing to follow the guidelines in all but the most unusual cases. If, instead, a few activist judges use their freedom rashly to impose their own visions of justice, congressional Republicans are prepared to retaliate by adopting harsh new limits on judicial discretion that could make the old ones look tame. 

reyer's victory was personal in more ways than one: He managed to restore the federal sentencing system to something like the one he had tried to create as chief counsel for Senator Edward Kennedy on the Judiciary Committee in the late '70s. Liberals like Kennedy and Breyer worried that sentencing disparities were unfair to minorities; they sought greater uniformity as a way of promoting equality. At the same time, conservatives were eager to abolish parole as a way of promoting longer sentences. Eventually, in the bipartisan sentencing reform act of 1984, Congress abolished parole and adopted mandatory federal sentencing guidelines to guarantee that prisoners would serve predictable terms. 

Although the initial sentencing guidelines were motivated by a search for fairness, federal judges resented the fact that Congress had tied their hands. Breyer, appointed to the appellate bench in 1980, tried to reassure his colleagues that the sentencing guidelines were not so bad. If a judge thought a sentence was too high, he told them at judicial conferences, they should simply "depart, depart, depart," referring to their ability to reduce a sentence by departing downward from the guidelines. But, in 1987, at the height of the Reagan-era war on drugs, Congress put new limitations on downward departures by passing a series of harsh mandatory minimum sentences for drug and gun offenses. These mandatory minimums led to wild disparities between the punishments for similar amounts of crack and powder cocaine, for example, and many judges considered them unconscionable. When the federal sentencing commission proposed to eliminate the disparity between crack and powder cocaine in 1995, Congress blocked the change at the insistence of the Clinton Justice Department. At the time, the administration was under pressure from the National Rifle Association, which, angry about the passage of the assault-weapons ban the previous year, accused the White House of coddling criminals because it failed to push for passage of new mandatory minimums. The NRA's threats led Congress and the White House to judge-bashing of the crudest kind. 

In the Bush administration, Congress became even more aggressive in declaring war on judicial discretion. In 2003, Congress passed an amendment introduced by Tom Feeney, a freshman House Republican from Florida. Largely drafted by the Ashcroft Justice Department, the Feeney amendment required that, every time a federal judge reduced a sentence, the judge's name be reported to Congress. The Feeney amendment also provided that downward departures should be reviewed skeptically by appellate courts. "The game is over for judges," sneered Judiciary Chairman Orrin Hatch. The reporting requirement infuriated the federal judiciary--so much so that Chief Justice Rehnquist, in his annual report in 2003, said that it "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties." 

Many federal district judges--most of whom are Republican, and many of whom are tough former prosecutors--view Congress's repeated assaults on judicial discretion as a form of legalized injustice that the country will come to regret. In 2003, John Martin, a federal judge in New York, wrote in The New York Times that "Congress's disdain for the judiciary" had prompted him to resign. And, in September 2004, Paul Cassell, a Nevada judge recently appointed by Bush, issued an anguished opinion in a drug case assailing the unfairness of the sentencing guidelines. Cassell, a conservative who made his name as the leading scholarly critic of the Supreme Court's decision requiring police officers to read suspects their Miranda rights, said he was appalled that the guidelines forced him to sentence a man who made three marijuana sales and was carrying guns to 55 years without parole. A drug kingpin, a terrorist, or a spy, he pointed out, all would have gotten lesser sentences under the guidelines. Questioning whether the sentence might be cruel and unusual punishment, Cassell called on Congress to reform guidelines that led to such "unjust, cruel, and even irrational" results. 

Since Congress and the state legislatures remained unmoved by the judges' pleas for more discretion, judges began to take matters into their own hands. Beginning in 2000, an unusual alliance of five liberal and conservative justices on the Supreme Court (Scalia, Thomas, Stevens, Souter, and Ginsburg) began to suggest that the federal and state sentencing guidelines violated the Sixth Amendment right to trial by jury. According to these justices, the Constitution does not allow judges to increase sentences under the guidelines based on facts that had not been proved to a jury beyond reasonable doubt. This view was hard to reconcile with the original understanding of the Constitution, since juries have not traditionally played a large role in sentencing. But it was a creative demonstration of what, ironically enough, Scalia has denounced elsewhere as the "Mr. Fix-It Mentality," an attempt to restore some role for courts in setting sentences in the face of congressional assaults.  

f sentencing guidelines are unconstitutional, what should replace them? After the Court struck down the state sentencing guidelines last year, states like Kansas responded by requiring juries to determine each fact that was used to enhance a sentence. Because it's hard to prove things to juries beyond reasonable doubt, defense attorneys hope these reforms will eventually lead to lower sentences or even jury nullification. And to require similar fact-finding by federal juries would be extremely disruptive: Between 2000 and 2004, there were more than 270,000 defendants sentenced in federal court, nearly all of whose cases are governed by the sentencing guidelines. 

Breyer avoided this mess by persuading Ginsburg to make the federal sentencing guidelines advisory rather than binding. At the same time, he managed to liberate judges from the hated Feeney amendment. And he justified his unexpected remedy by claiming that Congress would have preferred it to the alternative, favored by the Blakely majority, of requiring juries rather than judges to take the lead in sentencing. On its face, Breyer's claim is open to question: Congress in 1984 explicitly considered and rejected optional sentencing guidelines. Nevertheless, Breyer's solution is arguably closer to the flexible spirit of the original sentencing guidelines than Scalia's similarly activist alternative. "I think Breyer got as close to possible to the guidelines as they should operate, and as he envisioned them operating, before the 1987 guidelines were imposed," says Douglas Berman, an Ohio State University law professor who runs an invaluable blog called Sentencing Law and Policy. 

What happens next? According to congressional aides, there are two main options now being considered in Congress. The first is the worst--Congress could declare all-out war on the Court by passing even more crude and draconian mandatory minimum sentences to constrain judges who are, for the moment, unconstrained. This option, favored by House Republicans led by Judiciary Chairman James Sensenbrenner, as well as by the most conservative members of the Senate Judiciary Committee, such as Jeff Sessions and Jon Kyl, would infuriate judges and makes no policy sense. 

Judges should consider it an act of God that Arlen Specter is now chairman of the Senate Judiciary Committee, as opposed to the judge-bashing Hatch. Although on a tight leash from the White House in light of his defense of Roe v. Wade, Specter has good relations with Senate Democrats and will do his best to resist the many ill-advised proposals to curtail judicial discretion that are percolating up from the House. 

The second option is to do nothing and see how well judges do under voluntary guidelines. Is the wait-and-see alternative politically feasible? Maybe for a few months. Under the moderate leadership of Deputy Attorney General Christopher Wray, the Justice Department has made clear that it is willing to study the effects of the Supreme Court decision rather than demand immediate congressional action. But the judiciary's ability to preserve its unexpected victory depends on the restraint of judges themselves. Some activist judges might seize on their new power to impose whatever sentences they think are just and fair, and damn the consequences. This would be politically suicidal and would provoke Congress into paroxysms of judge-bashing retaliation. 

A better response is embodied in an opinion issued by Cassell the day after the Supreme Court decision came down. In this case, Cassell imposed the same sentence under the new voluntary guidelines that he would have imposed under the old mandatory system. "In all future sentencing, the court will give heavy weight to the Guidelines in determining an appropriate sentence," Cassell wrote. "The court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons." If other federal judges exercise their newfound discretion as wisely as Cassell did, perhaps Congress can finally be persuaded to trust judges enough to treat them like adults. And then, perhaps, judges will be freer to avoid the examples of legalized injustice that congressional posturing has forced them to impose.