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Few Supreme Court decisions on criminal law loom as large as United States v. Booker<\/em><\/a> from 2005. <\/em>In that case, in a pair of 5-4 decisions, the Supreme Court ruled that the United States Sentencing Guidelines, which had been mandatory since their promulgation in 1986, violated the Sixth Amendment, and that the Guidelines were henceforth to be treated by sentencing judges as \u201cmerely advisory.\u201d The mandatory Guidelines regime that preceded Booker<\/em>\u2014which required federal judges to sentence defendants within harsh, narrow ranges\u2014was widely criticized. One survey showed that nearly 70% of federal judges objected<\/a> to the mandatory Guidelines, and one judge even resigned because of them, writing in an opinion column<\/a> in The New York Times that he no longer wanted \u201cto be a part of our unjust criminal justice system.\u201d Over the past 17 years since Booker<\/em>, there has been little cause for concern that Booker<\/em>\u2019s important reforms would be upended. Until now. <\/p>\n In late March, in response to soon-to-be Justice Ketanji Brown Jackson\u2019s nomination to the Supreme Court and confirmation hearings, Senator Josh Hawley from Missouri introduced the PROTECT Act of 2022<\/a>. The bill has already been blocked from unanimous consent and has stalled in committee. If passed, however, it would, among other things, make the Sentencing Guidelines mandatory for child pornography cases. In a press release<\/a>, Senator Hawley asserted that in the original PROTECT Act of 2003, Congress had attempted to \u201cenhance the penalties\u201d for child pornography cases, and that the \u201cPROTECT Act worked\u201d until \u201cthe Supreme Court gutted it in 2005\u201d in Booker<\/em>. Senator Hawley lambasted Booker<\/em> as \u201ca controversial 5-4 decision\u201d that gave judges the \u201cdiscretion to impose lenient sentence on child porn offenders.\u201d Senator Hawley\u2019s broadside attack on Booker<\/em>, and his description of it as a \u201ccontroversial 5-4 decision,\u201d appears to signal a renewed appetite to challenge Booker<\/em> despite the past 17 years of stability. Although the bill is unlikely to be taken up in committee soon, Senator Hawley pledged<\/a> to \u201ccontinue to seek passage of this Act.\u201d There is also no reason to think that this attack on Booker<\/em>, whether successful or not, will not be extended in the future to other kinds of cases, beyond those involving child pornography, such as cases involving narcotics or financial frauds.<\/p>\n Booker<\/em>, despite being settled law for 17 years, may well be more vulnerable to challenge than it seems. Although Senator Hawley described Booker<\/em> as a \u201ccontroversial 5-4 decision,\u201d Booker<\/em> was in fact two separate 5-4 decisions, with only a single justice joining both opinions, leaving the decision even more open to attack. In the first 5-4 decision, the \u201cconstitutional\u201d opinion, Justice John Paul Stevens\u2014joined by Justices Antonin Scalia, David Souter, Clarence Thomas, and Ruth Bader Ginsburg\u2014wrote that the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing. In the second 5-4 decision, the \u201cremedial\u201d opinion, Justice Stephen Breyer, joined by Chief Justice William Rehnquist and Justices Sandra Day O\u2019Connor, Anthony Kennedy, and Ginsburg, focused on Section 3553(b)(1) of Title 18, United States Code, which says courts \u201cshall impose\u201d Guidelines sentences for the most part, and found that \u201cthis provision must be severed and excised.\u201d The remedial opinion concluded that \u201cthe Guidelines system\u201d would become \u201cadvisory while maintaining a strong connection between the sentence imposed and the offender\u2019s real conduct.\u201d<\/p>\n Several dissenting opinions criticized the remedial holding. Justice Stevens, joined by Justices Souter and Scalia (in part), argued that Section 3553(b)(1) was constitutional on its face, given that the constitutional opinion\u2019s jury factfinding requirement would \u201cat most apply to a minority of sentences imposed under the Guidelines\u201d and could be addressed in those cases in various ways, including by more specific indictments. Justice Stevens criticized the remedial opinion as an \u201cextraordinary exercise of authority\u201d that \u201crepresents a policy choice that Congress has considered and decisively rejected.\u201d <\/p>\n WASHINGTON, D.C. – APRIL 19, 2018: The U.S. Supreme Court Building in Washington, D.C., is the seat … [+]<\/span>