In final order list of Term, Supreme Court grants cert on big new Second Amendment case and denies/punts cert on acquitted conduct cases

While the rest of the legal world is still processing the final sets of big SCOTUS opinions as it completed handed down opinion in argued cases from OT 22, the final official action of the Term came in the form of this big final order list setting up lots of new intrigue for OT 23.  In particular, on topics I have followed here closely, we get a cert grant in US v. Rahimi to address (at least) one aspect of how Bruen applies to federal firearm possession criminalization, and we get a disappointing cert denial in all the acquitted conduct cases. 

The McClinton case on acquitted conduct (where I filed an amicus brief) generated a bunch of opinions suggesting that a future cert grant on acquitted conduct sentencing might still be in the offing.  Specifically, Justice Sotomayor has a five-page statement that ends this way: 

The Court’s denial of certiorari today should not be misinterpreted.  The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year. If the Commission does not act expeditiously or chooses not to act, however, this Court may need to take up the constitutional issues presented

Justice Kavanaugh, joined by Justices Gorsuch and Barrett, provided this one-paragraph statement:

As JUSTICE SOTOMAYOR explains, the Court’s denial of certiorari today should not be misinterpreted.  The use of acquitted conduct to alter a defendant’s Sentencing Guidelines range raises important questions.  But the Sentencing Commission is currently considering the issue.  It is appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.

And Justice Alito has a six-page opinion concurring in the denial of cert that ends this way:

If the Court in some future case takes up the question of the constitutionality of considering acquitted conduct at sentencing, better arguments on both sides of the issue may be presented to us, and nothing that I have written here should be understood as the expression of a firm position on that question.  But because my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.

I will surely have some more commentary on this eventful cert denial in later posts (likely over the weekend).  For now I will say I am disappointed, but not all that surprised, that the Justices keep being content to kick this ugly-but-challenging acquitted-conduct can down the road.