Jon is absolutely right on this. It should also be noted that Justice Breyer not only participated in the guidelines decision — he was a key participant, authoring the second majority opinion which allowed the guidelines to continue to exist, albeit as a helpful reference rather than as a mandatory regulation regarding what the appropriate sentence should be in a given case.

This is no small matter. Only time will tell, but there is reason to think that the Court has left us with the worst of all worlds: we no longer have the certainty of the guidelines because judges may ignore them, but we still have all the downsides of the guidelines — that is, participants in the sentencing process will still have to expend the same resources to do complex guidelines calculations, the guidelines will still spawn tons of appellate litigation because defendants will use them to try to demonstrate that some sentences were “unreasonable,” and the attendant bureaucracy (the U.S. Sentencing Commission) will continue to survive and thrive. That’s a lot of time, effort and money to expend on something that is no longer binding law. Many reasonable people would say it’s not worth preserving.

I am not contending that Breyer’s participation in the guidelines case was indefensible. BUT, it was a lot closer call than the silliness over whether Justice Scalia should have recused himself in the Energy Task Force case. Justice Breyer, it is fair to say, was very vested in preserving the sentencing guidelines system before he ever got on the Supreme Court.