When and how will SCOTUS get involved?

As noted before, there is no doubt the Supreme Court will have to speak on Blakely issues. But now the big questions are not only when, but also how the Supreme Court will get involved. Helpfully, this fantastic piece at the SCOTUS Blog provides an insightful account of some of the possibilities, challenges and opportunites presented by different routes for Supreme Court review. I completely agree with Lyle Denniston’s analysis that, as they did in Mistretta, the High Court is more likely to take a case from a district court than one of the appeals already in front of them. Judge Cassell’s Croxford case seems like a good candidate, though there is also Judge Goodwin’s Shamblin case and many other viable possibilities now. One wonderful legal realist question is whether the Justices will care, when deciding which case to take, about the underlying crime or just about whether the case presents the legal issues cleanly. I always thought it was significant that the Court used the Rodney King case as its vehicle to issue a pro-defendant ruling about departures in Koon v. US. See generally 76 Notre Dame L. Rev. 21 (2000).

In any event, I am very disturbed by those parts of the SCOTUS blog report that suggest there is no excitement about this issue in the halls of the High Court. As of this writing, at least 15 circuit judges have said on the record, “Review this matters quickly, Supremes!” (Judges Posner and Easterbrook and all the active judges of the Second Circuit.) Meanwhile, the Sixth Circuit may now be a completely guidelines-free zone after the decision today in Montgomery. And the Senate Judiciary Committee, showing I think a lot of respect for how the judicial branch can handle these matters, seemed to conclude yesterday that it would stay out of the scrum so that the Supreme Court could get the first word on what Blakely means for the federal system. The Supreme Court needs to act and act quickly if only to justify the faith that I think is now being shown by Congress in the judiciary’s ability to handle it own mess.

I am on record as saying to Congress that it should “Go Slow.” Now let me be clear on the record that I think the message to the Supreme Court should be three words: “Go really fast!”

More later about the challenges facing the High Court whenever they take on this matter.