More SCOTUS Scuttlebutt

Lyle Denniston, of SCOTUSblog fame, wrote to me in response to my mini-rant about the need for quick action by the Supreme Court. Here’s what he had to say:

A clarification: I did not mean to suggest there was no excitement at the Court about the Blakely follow-up issues; I meant only that the 2d Circuit had stirred no excitement with its certified questions. There is a considerable difference. And the absence of a sense of crisis is normal for a Court that is constantly being bombarded with urgent requests to do something now — on everything from Death Row reprieves to the breathless maneuverings in a case like Bush v. Gore.

One of the things I heard today was that taking on the 2d Circuit questions would only delay final resolution, perhaps by six months, and there is a keen interest in not stretching this thing out. Interestingly, we have not yet seen the calendar for October oral argument yet, and there is no reason to think that it is not done yet. The reason, I would guess, is this: it is being held up to see if space needs to be saved for a Blakely redux. The ball definitely is in Paul Clement’s hands right now, but when he moves, so will the Court, and I believe quite rapidly.

Needless to say, I am very pleased to know that there is in fact a sense of urgency about all this within the Supreme Court, even if the certified case is not the route taken. And I was also pleased to discover tonight that I was in good company with my ranting. The Washington Post has this editorial running Thursday titled “A Supreme Mess” which reviews the legal confusion and concludes, “The Supreme Court made this mess, and it should be obliged to clean it up quickly.” For a little fun, I encourage readers to guess in the comments the exact date when the Court will grant cert. (I’ll even send a prize to anyone who guesses right, but only one guess per person, please.)

I must finally say that I find it a bit disconcerting that the Supreme Court is so unwilling to let circuit court judges help determine its docket — as Lyle puts it, “The ‘certified question’ procedure has no devotees on the Court” —while it is apparently quite willing to let its docket be shaped by the desires of the executive branch acting through the SG. Well, at least Lyle’s report makes me seem clairvoyant when I previously posted that new Acting SG Paul Clement “will likely play a major role in determining when and how the Supreme Court rules on what Blakely means for the federal sentencing system.”

I’m starting to think Ted Olson probably decided to retire somewhere in the middle of reading Justice Scalia’s opinion in Blakely.