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July 14, 2004

When and how will SCOTUS get involved?

As noted before, there is no doubt the Supreme Court will have to speak on Blakely issues. But now the big questions are not only when, but also how the Supreme Court will get involved. Helpfully, this fantastic piece at the SCOTUS Blog provides an insightful account of some of the possibilities, challenges and opportunites presented by different routes for Supreme Court review. I completely agree with Lyle Denniston's analysis that, as they did in Mistretta, the High Court is more likely to take a case from a district court than one of the appeals already in front of them. Judge Cassell's Croxford case seems like a good candidate, though there is also Judge Goodwin's Shamblin case and many other viable possibilities now. One wonderful legal realist question is whether the Justices will care, when deciding which case to take, about the underlying crime or just about whether the case presents the legal issues cleanly. I always thought it was significant that the Court used the Rodney King case as its vehicle to issue a pro-defendant ruling about departures in Koon v. US. See generally 76 Notre Dame L. Rev. 21 (2000).

In any event, I am very disturbed by those parts of the SCOTUS blog report that suggest there is no excitement about this issue in the halls of the High Court. As of this writing, at least 15 circuit judges have said on the record, "Review this matters quickly, Supremes!" (Judges Posner and Easterbrook and all the active judges of the Second Circuit.) Meanwhile, the Sixth Circuit may now be a completely guidelines-free zone after the decision today in Montgomery. And the Senate Judiciary Committee, showing I think a lot of respect for how the judicial branch can handle these matters, seemed to conclude yesterday that it would stay out of the scrum so that the Supreme Court could get the first word on what Blakely means for the federal system. The Supreme Court needs to act and act quickly if only to justify the faith that I think is now being shown by Congress in the judiciary's ability to handle it own mess.

I am on record as saying to Congress that it should "Go Slow." Now let me be clear on the record that I think the message to the Supreme Court should be three words: "Go really fast!"

More later about the challenges facing the High Court whenever they take on this matter.

July 14, 2004 at 01:01 PM | Permalink


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I would like to see more, and more thoughtful and thorough, consideration of the issues by the Circuits before Supreme Court action. As a practitioner in the Second Circuit, I was deeply disappointed that some of the best judges in the country couldn't take a week or two and really consider the substance of what Blakely means. The Circuit's tendency to stay out of controversy was lamentable in this case.

I think that Judge Sessions was quite right in saying yesterday that there is no crisis, although there is certainly some confusion. The courts can muddle by, particularly after this initial phase is over. Once the government starts including sentencing elements in indictments, the guidelines can actually work in most significant respects. (DOJ's memos indicate the intent to charge even the bases for upward departures in the indictment.) The procedures will have to change, but the substance, or most of it, can endure until it becomes clear what changes are necessary.

Finally, this is an opportunity, not a catastrophe. There should be at least a moderate period of experimentation before anyone steps in to end it. I think the lower courts can handle the situation, and after some deliberation there, the Supreme Court should address the issue. A number of interesting proposals have been made to reconcile the guidelines with Blakely, and the experience of the next few months could inform the ultimate decision about which of them has the most merit.

Posted by: David in NY | Jul 14, 2004 3:56:56 PM

I don't have any strong sense of what the best vehicle might be for Supreme Court review (although I hope it would be one in which the severability question can be briefed and considered, in addition to the constitutional question(s)), or for how expeditiously the Court should act. I do think, however, that the ball is in the SG's court. The Court is very likely to consider whichever case, and whichever questions, Acting SG Clement and Deputy SG Dreeben request it to consider, particularly if the SG obtains acquiescence of the other party to whichever case it selects as the ideal vehicle.

Posted by: Marty Lederman | Jul 14, 2004 4:16:29 PM

Once the government starts including sentencing elements in indictments, the guidelines can actually work in most significant respects.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:41:56 PM

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