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On Tuesday, the Supreme Court continued its return to action with Beaird v. United States, a case about criminal sentencing. The court will decide exactly how closely judges are required to listen to guidelines of the United States Sentencing Commission over how long a convicted defendant can be jailed for. While the justices, especially Neil Gorsuch and Ketanji Brown Jackson, sparred over how to handle the court’s recent precedent weakening federal agency power, a concerning pattern re-emerged for the first time in this new term. What we have is a court with a nearly unrelenting drive to monopolize its own view of the law over everyone else’s.
In the U.S. criminal system, after a jury finds a person guilty beyond a reasonable doubt, it is generally up to the district court judge to determine their sentence. One problem with that system is that different judges can have vastly different views on the true severity and punishment deserved for the same crime. To help remedy unfair disparity between sentences, Congress created the U.S. Sentencing Commission in the 1980s, an independent federal agency within the judicial branch. Headed by presidentially appointed judges and criminal law experts, the commission provides formal recommendations for the appropriate sentencing for various crimes. More specifically, it provides two types of writings: guidelines providing sentencing ranges (say: 24 to 48 months) and commentary providing more detail on how a judge is supposed to issue decisions within that range. The commentary in particular also instructs judges when they can enhance or decrease a sentence based on the facts of the case. For example, the judge who sentenced Elizabeth Holmes in her healthcare fraud suit relied on the commission guidelines for the initial number of financial penalties but then relied on the commentary to further increase that sentence based on the severity of the financial loss the court calculated.
Beaird concerns how judges are supposed to treat these two distinct yet related parts of the Sentencing Commission’s work. Authorities in Texas arrested a man named Kendrick Beaird for unlawful possession of a firearm. The lower court judge sentenced Beaird to an even heavier sentence than he might otherwise have gotten due to the type of large-capacity firearm the police found him possessing. The guidelines told the court to impose a harsher sentence on Beaird for a “large” capacity magazine, but it was the commentary that defined that “large” roughly meant a gun capable of firing 15 rounds or more before reloading. Beaird argued that his firearm was actually below the range that the commentary suggested and, more broadly, that a court has the authority to ignore the commentary if the judge disagrees with it. How much credence a court gives to both the guideline range versus the commentary details matters a lot in a case like Beiard’s, as it can mean the difference of years worth of prison time.
At oral argument, no one was more prepared to discuss the Sentencing Commission’s procedure than Justice Ketanji Brown Jackson, who served as vice chair of the commission before becoming a judge. She posed to Beaird’s counsel that the guidelines and the commentary are inextricably linked. They are written by the same officials, the commentary cross-references specific guidelines, and both the commentary and guidelines are reviewed after years of data collection on sentencing patterns across the judiciary. Beaird’s position that judges should be allowed to ignore the commentary whenever they see fit, in Jackson’s view, splits an important mechanism for evenhanded criminal justice in half. Doing so would weaken the usefulness of both the commentary and the guidelines, and ultimately lead to wildly different sentences for the same crimes all depending on the judge. And you can imagine which types of Americans would be most hurt by inconsistent sentencing.
As Justice Elena Kagan noted, one way to keep this area of law consistent is for the court to follow its own precedent, in a case called Kisor v. Wilkie. That 2019 opinion, which Kagan herself wrote, was about how much courts should defer to an expert federal agency’s interpretation of its own regulations. Despite a request from litigants to overturn prior rulings in Kisor, a slim majority of the court ruled that judges were still required to defer to an agency’s interpretations of its regulations. So when, for instance, a federal agency like the Department of Veterans Affairs defines a medical term in determining which veterans get benefits, a court has limited discretion to second-guess that expert analysis. One option to resolve this case is for the court to transfer the Kisor deference principle to the Sentencing Commission and rule that this agency, too, is uniquely suited to have a say within its area of expertise.
Gorsuch disagrees. Every question he asked made clear that he would shoo away the more deferential Kisor approach, a case that saw Chief Justice John Roberts join the Ruth Bader Ginsburg and Stephen Breyer–era wing of the Democratic appointees to preserve the doctrine. Instead, Gorsuch favors deciding Beaird’s case along the lines of the decision of Loper Bright, an opinion from two terms ago where the 6–3 Republican appointees succeeded where Kisor failed, ruling that judges no longer needed to defer to an agency’s interpretation of the congressional statues (as opposed to regulations). Loper Bright controversially overturned this agency deference “Chevron doctrine” in a move that would have been way too far for even very conservative justices from decades past. A Gorsuch-backed opinion in Beaird would almost certainly rule that courts are not required to defer to the Sentencing Commission whatsoever. This would leave judges free to impose their own view on what it means for a capacity firearm to be large or not, among thousands of other nuanced sentencing questions that come up every year.
Among people who study or practice within this admittedly niche area of administrative law, the opinions in Kisor about judicial review of agency regulations and Loper Bright about judicial review of agency statutes are huge deals. From the Environmental Protection Agency to the Department of Homeland Security, the question of how much a court might defer to the agency’s expertise affects nearly every decision they make. What specific types of nuclear energy generators are safe enough to use? How much mercury is considered safe to have in your drinking water? Before Loper Bright, it was the agencies who had the primary say in answering these questions, even while their answers were subject to reasonableness review from courts. After Loper Bright, it’s the courts job to reach what they think is the “best” answer to any expertise-laden question. And if the court significantly changes the balance of deference owed to the Sentencing Commission, upward of 10,000 cases could go back to resentencing.
Baird is yet another example of what we might think of as the judicial respect line of cases. Each of the lawsuits mentioned above boils down to how much weight, deference, or credibility this court will give to other actors in the legal system, whether that’s Congress, expert agencies, or state actors. Unfortunately, we appear to be in the middle of a trend of the court insisting it’s the only entity in all of law whose legal opinions matter. And that trend directly harms the movement for a more democratic legal system, for popular constitutionalism. Because a court that won’t even listen to other legal institutions is sure to ignore the views of the people.
