Matt Kaiser

It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.

And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.

To do otherwise would violate the Ex Post Facto clause.

The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.

Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.

So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?

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Justice Kennedy announced the majority opinion in a long anticipated case today. It was met with a blistering dissent by Justice Scalia.

Unfortunately for most Court watchers, it was not the opinion in Fisher v. University of Texas, the latest in the Court’s attempts to resolve whether affirmative action in higher education is constitutional. Some observers expressed annoyance.

Instead, the Supreme Court issued a ruling in Maryland v. King, which Justice Alito previously identified as potentially the most important law enforcement decision in decades. The Court held that the police can take your DNA any time you’ve been arrested for a “serious” crime.

But the real fun was in the dissent….

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Today, the Supreme Court, in an opinion by Chief Justice Roberts, held that a citizen of a foreign country who is abused by a foreign corporation in a foreign country cannot sue in a U.S. Court under the Alien Tort Statute because, basically, multinational corporations are very different than pirates.

After Citizens United, we knew that corporations are people. We’re learning what kind of people they are (not pirates). Yet to be decided is whether you’d want to invite them to a dinner party. Or whether they’d accept.

How did we get here?

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Imagine you’re in a negotiation to buy a used car. You use the Blue Book — the Kelley Blue Book, not the legal Bluebook — to set the starting point on the price. You do your research at home based on the blue book that’s online, which says the starting point for the car you want is $10,000.

Then, when you get to the used car dealer, you find out that they have a new blue book, one that just came out that day. It says that the starting point for the car you want is really $12,000.

You’d probably be annoyed, maybe angry. The whole starting point for your conversation about the price of the car changed.

Yet, the dealer could tell you, and you could still agree with him to pay any amount you’d like for the car. The starting point doesn’t necessarily set the ending point.

This was, basically, the situation the Supreme Court was called in to referee in this morning’s oral argument in Peugh v. United States….

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The facts in today’s Supreme Court opinions read like a bloopers reel of our courts system. What do we do when judges are wrong on the law in a criminal case? What if a plaintiff decides, after losing, that he filed in a state court when the state court didn’t have jurisdiction? What if a lawyer doesn’t tell his client that by pleading guilty he’s going to be deported?

As Yakov Smirnoff would say, “What a country!

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Where is Oliver Stone when you need him?

It was a sparsely populated day today at the Supreme Court. The press box was depleted. The crowd was thin. Perhaps everyone else was still stuck in line waiting to vote?

Yet despite the low turnout, the Supreme Court made a spirited journey to the very heart of our nation’s federal conspiracy law.

To see the issue the Court wrestled with in Smith v. United States, let’s start with a hypothetical….

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Today at least, Gregory Garre is dog’s best friend in the Supreme Court.

The Court heard two cases involving when dogs can use their noses to help fight the war on drugs. Garre argued both – back to back – for the State of Florida. Fresh on the heels of his representation of Texas in the recent affirmative action case, it was an impressive morning.

The first case presented the question of whether a dog – here, named Frankie – brought to the front door of a house, can sniff at the front of the house for drugs.

Garre came out of the box asserting that there is no legitimate expectation of privacy in contraband. That didn’t go so well….

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Is there anything more American than an argument at the Supreme Court about affirmative action?

It combines so many things unique to our country: an obsession with elite institutions (including both the Supreme Court and the University of Texas, one of our best public schools); passionate arguments about our nation’s long and complicated relationship with race; the relentless striving for success and attainment familiar to so many of us who want to be a named plaintiff in a Supreme Court case (or get into college, depending); and, of course, protests outside a government building.

My fellow lawyers, Alexis de Tocqueville was right — “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Surely this form of American exceptionalism should be the most celebrated by the noble readers of Above the Law.

If there is any advantage to the way some in our nation attempt to affect the presence of minorities in elite colleges — through litigation rather than, say, appropriations — it’s that it leads to an awesome spectacle at One First Street NE.

And to that spectacle we now turn….

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As the Chief Justice announced at the start of today’s session of the Supreme Court, October Term 2011 is concluded; October Term 2012 has commenced.

And what a commencement it was. Stars of the Supreme Court bar flooded into One First Street N.E. to welcome the start of the term — and also because of the massive amount of corporate amicus work brought on by Kiobel v. Royal Dutch Petroleum.

Tom Goldstein, celebrating the ten-year anniversary of the invaluable SCOTUSblog, parked himself at the front of the lawyer’s lounge, resplendent in a pink shirt and pink tie — like Regis Philbin’s wardrobe, but in a way that worked for a lawyer.

There were two cases up for argument today. One involved whether you can sue a company with a U.S. subsidiary for very bad things it does in cahoots with the Nigerian government. The other was over the scope of federal admiralty jurisdiction….

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October first is the start of the new Supreme Court term!

If, like many readers, you’re a few years out of law school, this may strike you with a mild sense of dread. You remember the heady days of law school when you followed every argument, opinion, and cert grant from One First Street Northeast with an excitement rivaled only by your enthusiasm for the starting salaries for first-year associates.

Alas, the years since law school haven’t been kind to your pants size or your level of engagement with the Supreme Court.

Now, I suspect, you worry that soon — at a family dinner, dropping off your kids at preschool, or anywhere else you interact with non-lawyers — someone will recognize that you are a lawyer, and ask you what to make of the new Supreme Court term.

You have three options for how to deal with this, now, before the media frenzy over the new Supreme Court term starts.

First, you can admit to yourself that you’re no longer the gunner you used to be. You can tell people that just don’t follow the Supreme Court anymore, since you’ve gotten really interested in your exciting new life doing document review for a municipal bond arbitration.

But you’re not going to do that. If you were that good at being honest with yourself, you aren’t likely to be the kind of person who went to law school in the first place.

Second, perhaps, you can wade through the volume of information out there about the new term. Go through SCOTUSblog with the same passion you now spend tracking whether your friends from law school have better careers than you do. Maybe go to one of the OT 2012 preview events that clog every convention hall and small town library starting in mid-September.

That takes time and energy. Tom Goldstein sometimes uses really long paragraphs, and you really wanted to spend more time Googling for topless pictures of Kate Middleton.

Instead, you could let me to one of those events for you. For the truly efficient, follow the jump, sit back, and enjoy Kaiser’s Guide To Bluffing Your Way Through Knowledge About the Supreme Court’s New Term to Non-Lawyers….

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