The Federal Sentencing Guidelines themselves – and how they can and should be interpreted and applied – are up for debate in the U.S. Supreme Court tomorrow morning, in two cases: Rita v. United States and Claiborne v. United States.

I’ll be posting more on this after oral argument, but here are some reasons for hope among those who believe that ridiculously long penitentiary sentences for drug offenses (inter alia) are morally, fiscally and constitutionally wrong:

(1) After deciding Booker, the Supreme Court has focused more on the first part of its opinion than the second. 

Translation? The first part of Booker declared the portion of the guidelines that forced judges to increase mandatory minimum sentences based on facts not found by a jury (or admitted by the defendant) to be unconstitutional.

However, the second part of the opinion attempted to save the Guidelines from the dustbin of unconstitutionality by declaring them “advisory”, not mandatory.

The problem has been two fold: (a) no one knows what this really means and (b) as a practical matter, defendants have not gotten any benefit of the doubt. If the judge wants to go above the guidelines, appellate courts have mostly been affirming. However, below guidelines sentences have almost uniformly been reversed. That’s a step in the wrong direction.

If the questions and answers focus more on the unconstitutionality of the Guidelines, rather than on how to remedy them, we may be in for a treat.

(2) Chief Justice Roberts came down on the right side of Cunningham v. California; his predecessor Rehnquist surely would not have.  That lets us know that Roberts believes in the “right to a jury trial” part of the whole Apprendi/Blakely/Booker line of cases.

We’ll know more after oral argument. Stay tuned…