Analysis of the various routes to Blakely review of the federal sentencing guidelines by the Supreme Court

SCOTUSBlog has a very interesting post here in which they analyze the various routes to Blakely review of the federal sentencing guidelines by the Supreme Court.

No one but the Justices themselves can say with confidence what will happen next at the Court, but it is reasonable to assume that the Justices would rather avoid dealing with Blakely’s aftermath by the method suggested by the Second Circuit. [...] But how would the Court answer that ultimate question, if not by giving the Second Circuit an answer in response to its formal query Monday? The answer probably would be to agree to hear a prompt appeal by the Justice Department, through Acting Solicitor General Paul Clement, seeking direct review of a District Court ruling striking down the Guidelines on the basis of Blakely. That would bypass Circuit Court review, bringing the issue swiftly to the Justices by a process they prefer, a process that is not nearly as rare – or as suspect – as the certified question method. (There are at least some tentative signs that this alternative may actually be in the works.) An obvious candidate for such a “cert. before judgment” order would be United States v. Croxford, a decision by U.S. District Judge Paul Cassell of Utah on July 7, setting aside the Guidelines as invalid, and proceeding to sentence upon the basis of pre-Guidelines sentencing law. The Court, of course, need not return from recess to take such a step: a conference call could bring the Justices together. Then, even a normal briefing schedule probably would not bring the case up for argument before October; an expedited schedule could get it up early in the new term. In the meantime, if Judge Sessions is right, the lower courts could handle the sentencing that needed to be done. By taking a case directly from a District Court rather than granting review of a Court of Appeals decision (e.g., the 7th Circuit's ruling in U.S. v. Booker), the Court would have before it one that had been given the fullest review by an actual sentencing judge. Moreover, the Croxford case would be the one that brought the most sweeping interpretation so far of Blakely, and one that is fully responsive not only to Blakely but to the Justice Department's views and to both the recent conflicting rulings on appeal by the 7th Circuit and the 5th Circuit. Thus, it would seem to be a more well-rounded vehicle for review. And, although this might not make any legal difference, a review of Cassell's decision would be an examination of the work of a judge who is a strong supporter of the Guidelines concept. Once the Court had granted review of such a case, the Court could simply dismiss the Second Circuit’s certificate – and, in the process, send the lower courts a reminder of how jealously the Justices guard their own prerogatives regarding their docket.