The first major case of the Supreme Court's 2007 fall term, Gall v. United States, poses the most complex legal question faced thus far by the John Roberts-led Supreme Court. Argued at the beginning of October and currently under review, it should be the first major opinion delivered this term, along with its companion case, Kimbrough v. United States, which addresses the 100-to-1 disparity in crack and cocaine sentencing.

Essentially, what's at stake is whether defendants will be sentenced by well-informed trial judges, or whether legislature-composed formulas will form the basis for sentencing. Because of the close and unusual majorities in this line of cases, recent Court additions John Roberts and Samuel Alito will likely solidify the Court's direction on ambiguous sentencing issues. As such, Gall will also test Roberts' intellectual honesty — whether the self-proclaimed jurisprudential umpire is truly calling it like he sees it this term.

Gall is the latest in the Apprendi line of cases concerning the Sixth Amendment and legislature-approved mandatory sentencing regimes like the Federal Sentencing Guidelines (FGSs). Before Apprendi and its progeny, the federal sentencing guidelines worked as follows:

First, a defendant was tried by a jury. If the jury returned a guilty verdict, it would also find how much illegal drugs the defendant possessed or sold.

Then the defendant moved to a second, entirely different proceeding: the "sentencing" phase. During sentencing, in front of a judge only, the prosecution would "prove" how much cocaine the defendant was guilty of — not by the "beyond a reasonable doubt" standard of guilt required by the jury, but by a lesser "preponderance of the evidence" standard employed by the judge.

Because of this lesser standard of evidence, the judge almost always estimated far more drugs than the jury. The judge would plug this second, greater amount, along with the defendant's prior convictions and other factors, into a formula that would determine the sentencing range.

In 2005, the Supreme Court held in United States v. Booker that the FSGs violated the Sixth Amendment of the Constitution, which demands that "the accused enjoy the right to a speedy and public trial, by an impartial jury." Under the FSGs, the defendant received a legislature-mandated sentence based not on the amount of drugs the jury found he possessed, but by what the judge found he possessed using the lesser standard of evidence. Thus, the defendant was punished not for what the jury found, but for what the judge found — thus violating the "impartial jury" guarantee of the Sixth Amendment.

But, in one of the strangest majorities in decades, the Court conjured up a bizarre jurisprudential potion to remedy the situation. The Court decided not to throw out the FSGs completely, but instead rewrote them as "advisory" and not "mandatory." The Court declared that by removing the mandatory floor and ceiling imposed by the legislature, it magically cured the constitutional harm of the FSGs. Then the Court left the trial judge free to impose his own sentence and consider the FSGs merely "advisory" — even though it had just declared judge-based sentencing unconstitutional under a mandatory FSG regime.

As if to compensate for the irony, the Court then gave the appellate courts the power to review a district court's sentence to make sure it's "reasonable."

This jurisprudential hocus pocus confused the hell out of district court judges. They understood that since the FSGs were no longer mandatory, they could consider mitigating and aggravating factors and sentence appropriately. But then some appellate courts decided that any sentence deviating from the FSGs was unreasonable. This presumption forced the judge to possess really, really good reasons to deviate from the FSGs.

This led some veteran trial judges to ask a most appropriate legal question: What the fuck? If the FSGs are "advisory," how can a sentence be "unreasonable" if the judge considers mitigating factors, just as the Constitution apparently allows? If appellate courts can strike down a lesser sentence as "unreasonable" by comparing the sentence to the FSGs, then doesn't that essentially make the FSGs mandatory?

In truth, Gall represents the sort of legal Escher staircase that the Court tends to contort its jurisprudence into. If this were a Robertsian balls-and-strikes call, you would simply look to the Constitution, and then figure out if the two-seam fastball of the Federal Sentencing Guidelines hit the Sixth Amendment strike zone. The problem is that the Sixth Amendment doesn't really say: It simply tells us that the accused is guaranteed a right to trial by jury.

Over the years, the Court has twisted and turned this language into a flowing, circular logic: The guidelines should be advisory, and if not used, then they should become mandatory — except that they're not.

The solution John Roberts seems to have proposed during Gall's oral argument is exactly the kind of intellectually dishonest, faux-judicial restraint that has thus far marred his jurisprudence. The facts of the case are fairly straight-forward: Brian Gall sold some Ecstasy in college for a few months, but then quit the drug ring, got his degree, started his own business and has been an otherwise model citizen ever since.

The FSG formula called for a 30-37 month sentence in jail. But the judge thought the specific facts in this case warranted a lesser sentence of three years probation. The appellate court disagreed, saying that Judge Pratt's downward departure from the FSGs was unreasonable.

At oral argument — after Justice Scalia pondered whether Lex Luthor might still be charged with a crime if he blew the whistle on his own conspiracy — Chief Justice Roberts focused on the standard of review the appellate court should have over a district court's sentence. Brian Gall's attorney Jeffrey Green proposed an "abuse of discretion" standard, meaning that the appellate court shouldn't overturn a district court's sentence unless the judge has done something very, very unusual. Roberts responded by saying, well, doesn't that mean the appellate court is simply rubber stamping whatever the district judge says? In Roberts' words, what if in a district court you have a "hanging judge" and a "let'em loose" judge, then justice is based not on some objective standard, but on whatever judge the defendant happens to draw?

Green agreed, and Justice Alito pressed the point, asking if a judge who uses inconsistent standards and gives inconsistent sentences would be measured by the customs of the district court, the circuit court or the whole country. Green responded that the court of appeals would probably want to look at cases from the whole country. Then Roberts drove the nail into Brian Gall's coffin, at least as far as the Chief Justice is concerned: "Isn't that exactly what the Sentencing Commission did in establishing the Guidelines?"

In other words, Roberts and Alito swam Gall's attorney back up the waterfall. From this exchange, it looks like Roberts and Alito will vote for an "Extraordinary Circumstances" appellate standard, which likely means that the district court judge will have to follow the FSGs in all cases except those with "extraordinary circumstances," or be overturned by the appellate court. So, yes, if Roberts and Alito have their way, the FSGs will become all-but-mandatory again — even though the Court declared that they were unconstitutional in the last term before Roberts and Alito came onboard.

This is exactly the kind of bullshit that has become the trademark of Roberts' jurisprudence during his first term as Chief Justice: Roberts wants to be able to say he's exercising "judicial restraint" by not overturning Booker, when the effect of his judgment in Gall would do just that. This isn't a matter of liberal or conservative. When Roberts and Alito have pulled this kind of intellectually dishonest crap before, Antonin Scalia has breathed fire at them — while voting with their side!

For example, just three years earlier, the Rehnquist Court in McConnell v. FEC upheld bans on "electioneering communications" in the McCain-Feingold Campaign Reform Act. But in last term's FEC v. Wisconsin Right to Life, Roberts' opinion said, well, okay, but you can't ban these ads. Essentially, Roberts overturned the previous ruling without actually saying he did by granting "as applied exceptions." Umpire-in-Chief Roberts simply cut holes in the previous opinion — he made the McConnell strike zone look like Charlie Brown's Halloween costume. In his blistering concurrence Scalia scolded Roberts: "This faux judicial restraint is judicial obfuscation."

Also last term, Scalia dropped a bunker-buster on Alito for his plurality opinion (joined by Roberts and Kennedy) in Hein v. Freedom From Religion. In this case, Alito narrowly, almost magically distinguished Hein from the Court's 1968 holding in Flast v. Cohen that taxpayers can challenge government spending on First Amendment Establishment Clause grounds. In denying taxpayers the right to challenge President Bush's faith-based initiatives, Alito wrote, "We leave Flast as we found it." Scalia called shenanigans: "Laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive."

To borrow another Scalia witticism, John Roberts and Samuel Alito are creating jurisprudential zombies. McConnell and Flast aren't "alive" — they're undead opinions, reanimated only to chew the flesh of stare decisis as they roam unconsciously across the constitutional landscape. Trying to square Roberts' and Alito's writings with "living" precedents only invites their zombie opinions to eat your brains, until you become one of them.

How else could you read Roberts' opinion in last term's school desegregation case, which hollowed out Brown v. Board of Education like a jack-o-lantern, and then cited Brown itself to strike down school districts' attempts to combat the growing resegregation of public schools?

Gall could unleash a similar ghoul across the constitutional landscape. Where Roberts' previous opinions simply rendered precedents undead like lumbering Romero zombies, a potential Roberts opinion in Gall will aggressively reanimate the Federal Sentencing Guidelines. Roberts' Gall would eat away at the flesh of Apprendi, leaving another constitutionally undead law to roam the Sixth Amendment landscape. The "advisory" FSGs will rise up to attack and infect rehabilitated defendants like Brian Gall, like the fast zombies from 28 Days Later, every time a trial judge mitigates an overly harsh sentence.

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