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November 8, 2004

No so fast?

Responding to my speculation here that Booker and Fanfan are coming from SCOTUS tomorrow, Marty Lederman in comments here says he "would be very surprised if the Court decided Booker and Fanfan tomorrow. If I had to predict, I'd say December 7th, 8th or 13th." He and the always knowledgeable Howard Bashman reasonably suggest that the complexity of the severability issue may prevent the Court from such quick action. As Howard explained to me in an e-mail:

Those who are predicting that opinions in the Federal Sentencing Guidelines (FSG) cases won't be issued tomorrow are probably basing their prediction on the complexity of the FSG cases and the likelihood that they will draw one or more dissenting opinions. The first opinion(s) of the Term tend to be quick, short, unanimous rulings.

And Marty followed-up: "if the Court perceives that there really is a crisis that needs immediate resolution, it could well decide the cases this week, or next Monday, or November 30th/December 1st."  So, even if we do not get Booker and Fanfan tomorrow, we will at least have some more tea leaves to read about what the Court is thinking.

And speaking of reading tea leaves, I wonder if Appendi/Blakely/Booker issues came up in today's Supreme Court oral argument in Shepard v. US.  The SCOTUS Blog has this helpful summary of the case, and I have highlighted previously here that the case might provide the Court a chance to speak to the continued validity and scope of the Appendi/Blakely "prior conviction" exception.

November 8, 2004 at 11:50 AM | Permalink


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