Sentencing Rules Get Hearing

Clement responded that the more complex indictments made it harder for judges to properly instruct juries.

But Clement's insistence on the "difficult remedial issues" the court would face if it scrapped the federal guidelines did make an impact on some members of the court. These justices entertained the possibility of making the guidelines advisory, or preserving those parts of them that do not involve judicial fact-finding.

"What about all the guideline factors that are not easily presented to a jury?" Ginsburg suggested to Christopher Kelly, a lawyer who was arguing against the guidelines. She added later: "Wouldn't the defendant much rather not have all this negative material tried to the jury?

Kelly replied that judges could be counted on to prevent defendants from being harmed.

But Justice Sandra Day O'Connor, who had dissented vigorously in Blakely, predicting that it would have "disastrous" consequences, seemed disinclined to let her colleagues escape the full implications of their decision in that case.

When Clement observed that he saw "no obstacle to making [the guidelines] voluntary," O'Connor, who had remained silent for most of the argument, broke in. "That seems so contrary to what Congress intended," she said. "It's a real stretch," she added.

The two cases argued yesterday are U.S. v. Booker, No. 04-104, and U.S. v. Fanfan, No. 04-105.

The court would normally have until July to issue a decision, but given the judicial system's demand for a clarification of Blakely, the court faces strong expectations to issue a ruling much sooner.