By HARVEY SILVERGLATE  |  June 11, 2009

But even though the Supreme Court's precedents virtually required the appeals-court judges to affirm Gendron's conviction, they were nonetheless free to comment. Judges are allowed to use whatever bully pulpit they have to influence the other branches of government in forging a more decent society respectful of individual rights. They need not sit by silently and watch the machinery of government crush the lives of citizens.

Breyer, though, writing for the three-judge panel, wrote simply:

Without this kind of law enforcement weapon, it would often prove difficult, or impossible, to stop certain seriously criminal activity, particularly activity involving drugs, or corruption, or other crimes in which no direct participant wants the crime detected.

In sharp contrast, one member of the panel, Louis Pollak, a highly respected visiting federal district judge from Philadelphia, made the following observation in a separate concurring opinion:

The fact that the methods pursued by government agents to offer Gendron a tempting opportunity to commit a crime were not only successful but have been found by this court (correctly, in my view) not to have been unlawful – i.e., not to have crossed the line into the forbidden realm of entrapment – does not, in my judgment, signify that those methods of enforcing this sort of statute are something to be proud of.

Thus did Pollak contribute that element we need desperately from our judges: an acknowledgement of the overriding importance of decency, conscience, civic virtue, and devotion to liberty. To decide a case like Gendron's without so much as criticizing the distasteful and, in the end, corrupting methods used by postal inspectors and prosecutors is to take judicial restraint and neutrality to a point where decency becomes irrelevant, and where toleration of evil becomes automatic and silent.

Breyer's cautious instincts have also been on display over the controversy concerning federal sentencing guidelines, which he helped write. The guidelines, which went into effect in the 1980s, were designed to ensure that criminals who committed similar crimes be punished in more or less similar ways regardless of the district in which they were prosecuted, and regardless of their position in society.

However, that nice theory has misfired. Many people have been sentenced to prison terms that were so inordinately long and disproportionate that conscientious judges have spoken out against such cruelty. Yet Breyer has continued to defend the guidelines in speeches at judicial conferences, at bar meetings, and in his written court opinions. Judge Breyer, the legal technician, helped create a finely tuned watch that is a mechanical wonder in its smooth and logical operation. The only problem is that, in the real world, it fails to keep time.

The growing revolt among lower-court judges finally forced Breyer, in a case decided in June 1993, to rule that there was some flexibility to moderate a sentence in "unusual" cases. In that case, a single mother of three young children had been convicted of carrying a pound of cocaine from New York to Providence and sentenced to 33 months in prison, a sentence the district-court judge believed was mandated by the guidelines.

Right judge, wrong Court

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