Monday, July 12, 2004

Great Questions Pertaining to the 2nd Circuit Decision

Marty Lederman of SCOTUS Blog has raised some interesting questions regarding the 2nd Circuit's ruling today.

Here's a teaser (click on the link if you want the whole story):

It should be noted that historically the Supreme Court has greatly disfavored certified questions, especially where (as here) it can answer the questions in a case raising them on certiorari...

If the Court decides to answer the court of appeals' certified question, there's a curious facet of the certification: The court's opinion today correctly notes that if the Supreme Court does invalidate the Guidelines, that only begins to address the impending "chaos," because there would then be a very difficult statutory question -- which can be viewed as a question of severability -- about how to proceed if certain Guidelines-prescribed methods of sentence-enhancement are invalid.

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