Advice on the Advice

The Supreme Court heard Beaird v. United States on Tuesday 13 October, from 10:04 a.m. until the case was submitted at 11:58, according to the official transcript. The question, as the Court framed it when it granted review, is whether Stinson v. United States (1993) “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines,” according to the docket. This publication set out the case before argument in Deference to the Commentary.

Three lawyers took three positions. Kevin Joel Page, for Kendrick Beaird, asked for no deference at all. Eric J. Feigin, for the United States, argued that the limits of Kisor v. Wilkie apply. Anthony J. Dick, appointed by the Court to defend the judgment, argued that Stinson stands. Everything below is from the transcript. Questions at argument are not votes, and the transcript does not say how any justice will decide.

Booker, again and again

After a first question from Justice Clarence Thomas about Kisor, Chief Justice John Roberts turned to the 2005 decision that made the guidelines advisory. “Of course, after Booker, the guidelines are advisory,” he said. “And I’m not sure why we should invite the lower courts to engage in somewhat it strikes me as an academic exercise of interpreting.” Justice Brett Kavanaugh pressed the same point, noting that the guidelines’ own §1B1.7 gives the commentary force: “why are we reinventing the wheel when Stinson did this -- 30-some years ago?”

Page answered from the statute. The guidelines go through procedures the commentary does not, he said in his opening: “Why would Congress bother to require detailed notice, public comment, 180 days of congressional review, and the approval of four voting commissioners every time the -- the Commission amends a guideline if the Commission could simply bind the courts to a new interpretation of the guideline without going through all of this simply by amending the commentary?”

Justice Gorsuch’s list

Justice Neil Gorsuch set out the case against Stinson as a series of steps. The circuits, he said, “are currently badly split.” Stinson “relied on silence being enough to be an implicit delegation of -- of interpretive authority and that their ambiguity is the appropriate trigger, both of which we’ve since rejected in Loper Bright.” He also asked Feigin about incentives. The Commission puts much of its commentary through notice and comment, he said, “But it doesn’t have to. It doesn’t even have to give it to Congress,” and he compared the commentary to the advisory notes to the Federal Rules of Civil Procedure, which nobody treats as binding.

The Chief Justice was not persuaded that the newer cases reach this one. “I just don’t see what Stinson, which involves an agency in the judicial branch and issues non-binding advice, really has much to do with Loper Bright at all,” he told Page.

Advice about advice

Dick built his argument on that distinction. “It is emphatically the province of the judiciary to say what the law is, but the advisory sentencing guidelines are not the law. They are advisory,” he began. Courts, in his account, should defer to the Commission on what its own non-binding advice means and then decide for themselves whether to follow it. “Booker has made Stinson a hundred times stronger,” he told Kavanaugh. Justice Ketanji Brown Jackson put the practical version to him: a judge who disagrees that the magazine enhancement should apply “would just vary at the end of the day.” “Correct,” Dick said.

Feigin called the government’s position a “Goldilocks” one and said a no-deference rule “would be a massive upheaval.” Gorsuch replied that the government “didn’t make a floodgates, the-end-of-the-world argument anywhere in your briefs,” and pointed to harmless-error review and the Commission’s statutory duty to revise the guidelines: “Just amend it every year as you’re supposed to.” Justice Elena Kagan asked Feigin whether his own position would not also “lead to a lot of resentencing demands.”

The defendant in the case

Justice Samuel Alito raised the point that may limit what any ruling means for Beaird. The district judge had said that “even if the guideline range was not calculated or applied correctly,” he would have imposed the same sentence. Page replied that the Fifth Circuit “does not take such statements at face value” and runs a separate harmless-error analysis, “a recognition of the fact that there are courts that say this in literally every sentencing case.”

In rebuttal Page offered the Court a narrower route. Applying the Kisor limits to the commentary, he said, “will actually solve many of the concerns that have been raised here today.” That is the government’s position. The petitioner ended the argument offering the Court the outcome the respondent had asked for.