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June 7, 2010

SCOTUS certification in Juvenile Male: a passive virture that only a Bickel fan could love?

The SCOTUS ruling today concerning the calculation of good-time credits in Bareber v. Thomas (basics here, comments here) is clearly the biggest sentencing story of the day.  But I cannot help but be really intrigued by the Supreme Court's per curiam decision in  in US v. Juvenile Male to deal with a complicated sex offender issue by certifying a question to the Montana Supreme Court (basics here). 

Helpfully, Lyle Denniston has this post with a helpful explanation of the basic factual background of Juvenile Male and the Court's certification maneuver.  Disappointingly, Lyle's post does not indicate when was the last time SCOTUS decided to deal with a cert petition by certifying a question to a state Supreme Court, nor does it speculate just why the Justices concluded why certification rather than a simple cert denied was the approach adopted here.

When I was clerking on the Second Circuit years ago, I became enamored with the authority of federal circuit courts to certify questions to state courts. Because I am generally a fan of federalism, the legal process jurisprudential school, and Bickelian second-look doctrines, the practice through which a federal court could dodge and/or clarify a tough state law issue by certifying questions to the highest court of a state seemed to me almost too cool to be true.  Consequently, I could not help but be a bit giddy this morningn upon hearing that SCOTUS had dusted off this (arcane?) procedure to deal with the tough SORNA issues raised in Juvenile Male.

But, for a host of complicated reasons and especially in criminal justice settings, there do not seem to be too many modern fans of federalism, the legal process jurisprudential school, and Bickelian second-look doctrines.  Thus, I cannot help but wonder if others are not as impressed with the SCOTUS certification move today as I am.  More importantly, I wonder if the certification in Juvenile Male will prove to be a one-trick-pony or if we can and should expect to see some other examples of SCOTUS passive virture for us Bickel fans in forthcoming work by the Court.

Whatever else one thinks of this certification move, I must assert yet again that, at least in the arena of criminal justice adjudication, the early Roberts Court is already a heck of a lot more interesting and unpredictable than was the late Rehnquist Court.

June 7, 2010 at 03:15 PM | Permalink


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"Lyle's post does not indicate when was the last time SCOTUS decided to deal with a cert petition by certifying a question to a state Supreme Court"

I don't know when the last certification was, but Zant v. Stephens is surely the most important certification from SCOTUS to a state supreme court in sentencing law.

Posted by: Kent Scheidegger | Jun 7, 2010 6:06:20 PM

I'm pretty sure the most recent prior example of SCOTUS certifying a question to a state supreme court is more recent than their acceptance of a question certified from a lower court. I am almost certain I came across a couple such while reading the bound volume PDFs (which start at U.S. 502). No word on what the state courts did with the questions however.

Posted by: Soronel Haetir | Jun 7, 2010 7:29:11 PM

I remember at least one. In Florida Star v. BJF, a 1980s First Amendment case, the Supreme Court certified a state jurisdictional law question, the Florida Supreme Court responded with its answer, and the Supreme Court relied on that answer to grant cert and decide the case on the merits.

Posted by: Chet Kaufman | Jun 8, 2010 10:47:32 AM

Stewart v. Smith, 534 U.S. 157 (2001) (requesting interpretation of Ariz. R. Crim. Pro. 32.2(a)(3)).

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Posted by: charms thomas sabo | Dec 16, 2010 2:40:01 AM

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