For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the federal sentencing Guidelines. That rebellion has intensified since the Court dealt a blow to the Guidelines a decade ago by making them advisory, rather than mandatory. This ruling dramatically limited the courts of appeals’ authority to reverse district court sentences that deviate from the Guidelines. Rather than accepting this limitation on their power, the courts of appeals fought against it by overpolicing sentences that deviated from the Guidelines and underpolicing sentences that fell within the Guidelines. The Supreme Court has responded to these mutinies with stinging reversals that emphasize the district courts’ significant discretion and the advisory nature of the Guidelines. This talk discusses these ongoing battles between the courts of appeals and the Supreme Court, including a new revolt the courts of appeals are staging that violates not only Supreme Court precedent, but the federal sentencing statute and the Constitution as well. Because the courts of appeals are unlikely to back down, Professor Siegler calls on the Supreme Court to step in and stop this latest rebellion.

Alison Siegler is Clinical Professor of Law and Director of the Federal Criminal Justice Clinic at the University of Chicago Law School.