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July 15, 2004

More SCOTUS Scuttlebutt

Lyle Denniston, of SCOTUSblog fame, wrote to me in response to my mini-rant about the need for quick action by the Supreme Court. Here's what he had to say:

A clarification: I did not mean to suggest there was no excitement at the Court about the Blakely follow-up issues; I meant only that the 2d Circuit had stirred no excitement with its certified questions. There is a considerable difference. And the absence of a sense of crisis is normal for a Court that is constantly being bombarded with urgent requests to do something now -- on everything from Death Row reprieves to the breathless maneuverings in a case like Bush v. Gore.

One of the things I heard today was that taking on the 2d Circuit questions would only delay final resolution, perhaps by six months, and there is a keen interest in not stretching this thing out. Interestingly, we have not yet seen the calendar for October oral argument yet, and there is no reason to think that it is not done yet. The reason, I would guess, is this: it is being held up to see if space needs to be saved for a Blakely redux. The ball definitely is in Paul Clement's hands right now, but when he moves, so will the Court, and I believe quite rapidly.

Needless to say, I am very pleased to know that there is in fact a sense of urgency about all this within the Supreme Court, even if the certified case is not the route taken. And I was also pleased to discover tonight that I was in good company with my ranting. The Washington Post has this editorial running Thursday titled "A Supreme Mess" which reviews the legal confusion and concludes, "The Supreme Court made this mess, and it should be obliged to clean it up quickly." For a little fun, I encourage readers to guess in the comments the exact date when the Court will grant cert. (I'll even send a prize to anyone who guesses right, but only one guess per person, please.)

I must finally say that I find it a bit disconcerting that the Supreme Court is so unwilling to let circuit court judges help determine its docket --- as Lyle puts it, "The 'certified question' procedure has no devotees on the Court" ---while it is apparently quite willing to let its docket be shaped by the desires of the executive branch acting through the SG. Well, at least Lyle's report makes me seem clairvoyant when I previously posted that new Acting SG Paul Clement "will likely play a major role in determining when and how the Supreme Court rules on what Blakely means for the federal sentencing system."

I'm starting to think Ted Olson probably decided to retire somewhere in the middle of reading Justice Scalia's opinion in Blakely.

July 15, 2004 at 01:26 AM | Permalink


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Dear Prof. Berman,
Your blog is the best Blakely site on the web, and I've looked at them all.
My guess on the Balkely cert is Aug. 25. (Hey, you never know...)
I do occasional research work for a defense attorney.
Any chance, in your opinion, of it ultimately shaking out to jacking up the standard of proof to BRD, but permitting the judge to be the fact-finder? I mean, this would obviate the government whine about juries not being sophisticated enough to understand all those complicated terms such as "loss", while giving defendants a fighting chance not to go down for the extra 15-odd years on the basis of little more than allegations. Sentencing hearings would become mini-bench trials, but wouldn't this be a lot less unworkable than a second full court press with a jury?
Just a thought. I don't even know if it's possible in principle.
Best regards,

Posted by: L.M. Malvasi | Jul 15, 2004 7:34:14 AM

Thanks for the nice complement, Loretta, as well as the thoughtful post. I've long thought that the BRD right is more critical than the jury right, although that reality might depend on a case-by-case basis. I also think, in the long run, Blakely might have a bigger impact because of its BRD component than its jury component. But all of this is so dynamic and could still take so many turns.

Posted by: Doug B. | Jul 15, 2004 8:34:32 AM

Another interesting thing is whether one might be allowed to waive the Blakely right to a jury, but keep the BRD standard in the guideline sentencing stage. Who knows if you can waive one but not both?

Posted by: D.S. Walker | Jul 15, 2004 8:38:17 AM

I'm going to go with Monday, August 9, as my guess for a cert grant.

I also want to add that I agree completely with your penultimate paragraph. The OSG enjoys a tremendous amount of influence over the SCT docket, both in its own decisions as to which cases to bring to the Court, and also in cases in which the Court asks for the views of the SG (notwithstanding a few recent examples (e.g. the 3M case), the Court almost always listens to whether OSG thinks a case is cert-worthy). While I'm not so sure that the lower courts should be able to influence the docket, I am pretty sure that the Executive Branch shouldn't have as much influence as they do.

Posted by: Scott | Jul 15, 2004 1:00:53 PM

The dart landed closest to August 2nd, so that's my guess for cert.

Thanks for the wonderful blog!

Posted by: Paul | Jul 15, 2004 1:27:54 PM

My guess for cert: Aug. 12

Posted by: DEJ | Jul 20, 2004 9:38:49 AM

I also want to add that I agree completely with your penultimate paragraph.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:15:12 AM

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