IT IS RARE THAT all three branches of the U.S. government unite and publicly implore the Supreme Court to explain itself. Yet last week the acting solicitor general, Paul D. Clement, warned the Supreme Court that "the federal sentencing system has fallen into a state of deep uncertainty and disarray" since the court's bombshell decision last month in Blakely v. Washington. He begged it to clarify the law immediately -- though the court is out of session for the summer. The Senate, likewise, passed a unanimous resolution urging the court to "act expeditiously to resolve the current confusion and inconsistency." And numerous lower courts -- which have been struggling with the decision since the day it came down -- have done so as well. A unanimous Court of Appeals for the 2nd Circuit in New York went so far as to decline to rule on Blakely's meaning, saying instead that stability in the justice system requires immediate high-court attention and warning of "an impending crisis in the administration of criminal justice in the federal courts." The justices cannot afford to fiddle while this legal crisis burns.
The Blakely decision ruled that facts that would result in an increase in a convict's sentence beyond a presumptive sentencing range must be proven to a jury beyond a reasonable doubt, not considered by judges after a conviction. The decision cast a cloud of constitutional doubt over federal sentencing rules under which 1,200 sentences are meted out each week. Yet the court's principle was so imprecise that it left unclear whether the federal guidelines, which the court has previously upheld, must fall. As a consequence, nobody knows what rules govern sentencing today. In the chaos that has followed, during which the justices have been enjoying their summer vacations, prison time for some inmates has been cut. Courts around the country have reached wildly different answers concerning such basic questions as whether Blakely invalidates the guidelines and, if so, what that means. Legislatures -- including Congress -- are unsure what laws they need to rewrite.
At least some of the justices seem to know that their court is squarely to blame for this absurd situation. Justice Sandra Day O'Connor declared herself "disgusted in how we dealt with it" in a speech last week. As the author of a compelling dissent in the case, she personally has nothing to be ashamed of. The court as an institution, however, does. Indeed, it is hard to imagine a more profound rebuke to its work than seeing all three branches of government declare that the law as the court has interpreted it is so unfathomable that they cannot do their jobs until the court speaks again. That ought to be enough to interrupt a summer vacation.