The July 15 editorial on the Blakely v. Washington case was correct to highlight the chaos created by the Supreme Court's decision finding a state sentencing statute unconstitutional while offering no real guidance on whether the similar federal sentencing statute is also unconstitutional.

However, the court usually has been hesitant to make pronouncements on law that is not directly at issue. Blakely dealt with the Washington state sentencing statute, not the federal statute. It would be unusual for the court to offer guidance on a statute not at play in the litigation at hand.

Second, the court may have preferred that Congress, an elected branch of government, step in and address the possible constitutional infirmities of the federal sentencing statute. Third, to muster fives votes for the holding, concessions to the wishes of one or two holdout justices might have been needed. It is possible that one or two justices demanded no statement regarding the federal sentencing law in exchange for their vote.

The chaos created by Blakely is troubling. Offering the kind of guidance that would have avoided that chaos, however, also would have been troubling. It would have meant the unelected court deciding an issue of federal law not fully developed by the litigation over a state statute when the issue could be addressed by the democratically elected Congress.



The writer is an associate professor at Rutgers School of Law.