Reader Steve Sturm writes, about the Blakely decision, which is leading many lower courts to strike down the Sentencing Guidelines on constitutional grounds:
Today’s WaPo editorial calls for the Supreme Court to interupt their vacation and fix the Blakely mess (their characterization).
Can the Court issue rulings without a case on which to rule (I thought they didn’t like to/couldn’t issue advisory rulings)? Are there such things as a legal ‘do-over’?
Well, the Court couldn’t just decide on its own today, “whoops, we got it wrong in Roe v. Wade, we’ll just issue an order adopting the contrary rule.” But the losing party can file a petition for rehearing — there’s one due in Blakely August 18 — and the Supreme Court could revise its decision in response to that petition. I think the Court can also just unilaterally correct the decision at any time before the so-called “mandate” issues; in this case, I suspect that the extension of time to file a petition for rehearing will be seen as suspending the issuance of the mandate.
Now the Supreme Court almost never does either of those things, but courts of appeals sometimes do, and I think it would be within the Supreme Court’s power to do it. Also, the Court has before it the Second Circuit’s certified questions about the impact of Blakely on the Guidelines. The case, U.S. v. Penaranda, is now docketed, and the Court can in theory accept the certificate and give an answer — one that might clarify Blakely‘s scope, or even reverse that decision — very soon.
But in practice, I think the Court (1) will likely agree to hear the case very soon, since there is already a circuit split on an important issue, (2) might possibly make the decision to hear it in the next few weeks, rather than waiting until the late September / early October conference, so that the parties could start briefing the issue quickly, but (3) would likely not make a definitive decision until it gets briefs and hears oral arguments. Though the Justices could decide the matter without full briefing, or even any briefing (for instance, if they recall the mandate and amend the decision on their own), I think they don’t want to do that — briefing on important and difficult questions such as this really is valuable.
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