Professor Berman over at the Sentencing Law and Policy blog tells me I'm dead wrong on this. He says this mess is messier than the usual post-decision mess and that the court has to address it quickly because the other players who might have stepped in to fix things purposely stepped back in the belief that the court would get involved. That's a good reason for the court to hear one of these cases but not a reason for it to hear the first (bad) test case that comes along. Berman also notes the serious risk that the same politics that used to animate judges' sentencing decisions are now at play after Blakely: Judges who hated the guidelines could use Blakely to detonate them; judges who loved them are following them anyhow. All of which reassures me that power is back in the hands of the judges.
Yes, there is a circuit split upon us, meaning different courts of appeals have reached different conclusions about the constitutionality of the guidelines. But we live with circuit splits all the time. It felt like the circuits were split over affirmative action for about a million years. The Supreme Court eventually takes these cases and resolves them, as is its mandate. But in the meantime, it's not obvious to me that having different results in different jurisdictions really means the sky is falling. And it certainly doesn't mean the high court should have decided a case that wasn't before it last month. It might just mean that the old judicial laboratory is back in business. As it should be.
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