I didn’t know this was even possible:

The U.S. Court of Appeals for the Second Circuit, sitting en banc, just certified questions related to the constitutionality of the Sentencing Guidelines to the U.S. Supreme Court. So instead of a party’s asking the Supreme Court to consider a question (via a petition for certiorari or, in some cases, an appeal), it’s the Court of Appeals that’s asking.

I didn’t know this was possible. I knew federal Courts of Appeals could certify questions to those state supreme courts that allow this procedure, but I didn’t know that they could certify questions to the Supreme Court. Some research reminds me that this was a normal procedure in the 1800s for deciding legal issues in criminal cases; since there was no provision for appeal in such cases, which were often heard by two-judge federal trial courts, the case would sometimes go up to the Supreme Court when the judges certified the question to the Justices (especially when the trial court judges were evenly divided). Learn something new every day . . . .

In any case, 28 U.S.C. sec. 1254(2) provides that the Supreme Court may consider a matter “By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.” The Court may refuse to answer the questions (see, e.g., Supreme Court Rule 19.3; In re Slagle, 504 U.S. 95 (1992); Foley v. Carter, 449 U.S. 1073 (1981); Atkins v. U.S., 426 U.S. 944 (1976) (with three Justices dissenting from dismissal of certificate)), and leave it for the Court of Appeals to do the work.

A quick search suggests that the practice was not unheard of (though producing only a tiny fraction of the docket) until the mid-1950s, but in Wisniewski v. U.S., 353 U.S. 901 (1957), the Court seemed to try to discourage the practice. The most recent case I could find in which the Court decided a matter certified to it by a Court of Appeals is Iran National Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981). Here’s the heart of Court of Appeals’ argument for certification (besides its argument that it’s hard to tell what the recent Blakely v. Washington decision means for the Guidelines — if ceritification were proper whenever a Supreme Court decision led to confusion, then the Court would have to answer certified questions nonstop):

[W]e believe this is one of those “rare instances” when “the proper administration and expedition of judicial business” warrants certification of a question to the Supreme Court. Blakely not only casts a pall of uncertainty on more than 220,000 federal sentences imposed since Apprendi was decided, but it also raises the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court. We are convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts — disruption that would be unfair to defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional tequirements.

And here’s the circuit’s plea for unusual speed:

We recognize that the current term of the Supreme Court has ended, but we respectfully request that the Court not only entertain this certification, but do so at its earliest convenience, with an expedited briefing and hearing schedule, cf. Dames & Moore v. Regan, 453 U.S. 654 (1981) (setting case for oral argument on June 24, 1981, after regularly scheduled arguments concluded, and deciding case on July 2, 1981); Iran Nat’l Airlines, 453 U.S. at 919 (answering certified questions seventeen days after in order to minimize, to the extent possible, what we see as an impending crisis in the administration of criminal justice in the federal courts.

And apparently the Court’s initial decision whether to consider accepting the certificate will be made solely based on the Court of Appeals’ arguments, without briefing by the parties; here’s the relevant part of Supreme Court Rule 19 (emphasis added):

3. When a question is certified, the Clerk will notify the parties and docket the case. Counsel shall then enter their appearances. After docketing, the Clerk will submit the certificate to the Court for a preliminary examination to determine whether the case should be briefed, set for argument, or dismissed. No brief may be filed until the preliminary examination of the certificate is completed.

4. If the Court orders the case briefed or set for argument, the parties will be notified and permitted to file briefs. . . .

I would guess, though, that given the unanimous request of the Second Circuit’s judges, the Court would at least ask for briefing.

Thanks to Douglas Berman (Sentencing Law & Policy) for the pointer to the Second Circuit decision.

UPDATE: Marty Lederman (SCOTUSBlog) has more.

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