Breyer Got Ethics Clearance In Sentencing Case


Supreme Court Justice Stephen Breyer consulted a legal ethics expert before deciding that he could take part in the Supreme Court case on federal sentencing guidelines, reports Legal Times. Breyer sought advice from New York University law school’s Stephen Gillers in light of Breyer’s involvement in creating the guideline system, first as a lawyer for the Senate Judiciary Committee in the late 1970s and then as a member of the Sentencing Commission from 1985 to 1989.

Some legal experts argue that Breyer had too much of a personal stake to participate in a case that would decide the constitutionality of the guidelines. Breyer’s 5-4 opinion last week preserved the guidelines, at least in advisory form. “He was deciding on the life or death of his own brainchild,” says Hofstra University law professor Monroe Freedmann. “And what he wrote vindicated himself. When you are sitting in judgment of your own vindication, I think reasonable people might question your impartiality.” Gillers told Breyer that because he no longer was a commission member, “There is no longer any reasonable basis to question your impartiality on the issue of the validity of the guidelines. Nor is there any other basis to question your authority to sit in such a case by virtue of your prior service.”


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