Yesterday and today everybody in my office has been discussing the Supreme Court's opinion in United States v. Booker, which amounts to a full-employment act for us for the next few years.

A little background first. In 1984, Congress passed the Sentencing Reform Act, which set up a commission to write guidelines for the sentencing of criminal defendants. The Sentencing Guidelines that ultimately resulted were made mandatory, and sentencing judges were required to use them. The way it worked was that 1) a defendant either pleaded guilty or was found guilty; 2) a probation officer prepared a presentence report, taking into account many factors and setting forth relevant facts for the judge's findings; 3) the judge made findings as to relevant facts and imposed sentence accordingly, using the Guidelines. A few years ago, in Apprendi v. New Jersey, the Supreme Court determined that any sentencing fact not found by a jury that took a sentence beyond a statutory maximum violated the Sixth Amendment jury trial right. Last year, in Blakely v. Washington, the Supreme Court surprised us by holding that a state sentencing scheme similar to the federal sentencing scheme was unconstitutional. In that case, the Court held that the maximum statutory sentence was in fact the maximum guideline sentence.

In Booker, the Supreme Court found that the statutory provision making the U.S. Sentencing Guidelines binding on sentencing judges violated the Sixth Amendment's right to a jury trial. Most observers expected that holding in light of Blakely. However, what we did not expect was the remedy imposed by the Supreme Court. I feared a situation in which every little fact relevant to sentencing would need to be put before a jury and found beyond a reasonable doubt, something that would be terribly unweildly and inefficient.

Justice Stevens wrote the opinion on the constitutionality of the relevant provision, joined by Justices Scalia, Souter, Thomas, and Ginsburg. Dissenting were Justices Breyer (who helped write the guidelines before he was on the Supreme Court), Rehnquist, O'Connor, and Kennedy.

However, Ginsburg switched sides when it came to what to do about the unconstitutionality of the statute, giving Justice Breyer an opportunity to salvage what he could of the Sentencing Guidelines. Breyer, therefore, wrote the part of the Supeme Court's opinion on the remedy for the constitutional violation. Stevens, Scalia, and Thomas wrote dissenting opinions about that part. Breyer determined that the statute making the guidelines mandatory had to be cut out of the statute, and that another provision having to do with the appellate standard of review had to be deleted, but that otherwise the use of the Sentencing Guidelines is okay. So now the guidelines are advisory, not mandatory, and appellate courts review for reasonableness.

So, we end up with sentencing judges being able to make factual findings and being able to use the Sentencing Guidelines the same as before, except as "advisory" guidelines. There are other factors they can consider, but I suspect most judges will just keep on doing what they've always done.

So, in the end, a major Supreme Court decision will end up changing almost nothing.