They’re still not here: more waiting for Booker and Fanfan

The eagle still has not yet landed.  This morning the Supreme Court did not issue its opinion in the eagerly anticipated Booker and Fanfan.  All of us, and sentencing courts around the country, will just have to keep waiting.  According to this SCOTUS Blog post, there are only a few more days this year on which the Court is likely to issue opinions.  I am starting now to wonder whether we will see a decision before January (although I will surely keep crying wolf every time the Supreme Court announces an opinion is forthcoming).

Since now it appears that a decision in Booker and Fanfan has taken at least a full two months since argument in early October (and a full four months since the cert. grant in early August), it is hard not to speculate that the Court is struggling with the second severability issue (some background here).  Though this is a bit like making predictions based on how long a jury is out, I think we would have seen a pretty quick decision if there were five votes to keep Blakely from applying to the federal system.