NACDL

Active Liberty:
Interpreting Our Democratic Constitution
By Justice Stephen Breyer
Published by Alfred A. Knopf 2005
161 pages (including index)

The January 2005 Supreme Court case of Booker v. United States still perplexes criminal defense lawyers, not only because the two parts of the decision, unidentical 5-4 majorities, do not mesh together all that well, but also because it piques legal curiosity as to what was behind Supreme Court Justice Stephen Breyer’s thinking when he wrote to overturn the mandatory nature of the federal sentencing guidelines. Whereas Justice Stevens, who wrote the first part of the decision, basically interprets the historic right to a jury trial as applied to a jury’s deciding on facts pertinent to sentencing, Breyer’s decision stresses the rationale and the manner for the Court’s reading of Congress’ fundamental intentions in its legislating mandatory sentencing guidelines. Needless to say, of the two parts, Breyer’s decision has the more arcane aura to it