Legal Commentary

By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme Court review.

The last time the Supreme Court accepted a certified question from a court of appeals was in 1981, in the immediate aftermath of Dames & Moore v. Regan (a case that came to the Court in one big hurry).  In a related (but distinct) case arising out of the Second Circuit (Iran National Airlines Corp. v. Marschalk Co.), the Court answered three questions, two with one word ("yes"), and with cursory citations to Dames & Moore, and a third with a short explanation and a cite. Three Justices (led by Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefiit of additional briefing and argument).

To me, at least, Powell had it exactly right. Indeed, the Court's far-more-common practice is (as it was in 1981) to send cases back down for full reconsideration (and new briefing in light of the intervening decision) on the assumption that the issues might differ, if ever so slightly (in my view, at least, this was true in Marschalk).  One might justify what the Court did in Marschalk as stemming from the same pressures that led to the quick and decisive resolution of the Iranian claims isssue that prompted Dames & Moore itself, but in the typical case, a "GVR" in light of the new decision seems right on.

Same, too, with the most recent well-known effort by a court of appeals to have the Supreme Court answer a certified question -- the en banc Second Circuit's 2005 certificate in United States v. Penaranda, asking the post-Blakely sentencing question that the Court would soon answer in Booker. There, it was only a matter of time before the question presented would arise on the merits of a properly presented cert. petition, and so the Court knew it could wait, however briefly, for the issue to ripen.

In marked contrast, here we have a pure, discrete, stand-alone legal question wholly unrelated to any other cases currently pending before the Court, and one that would, for obvious reasons, materially advance (and perhaps pretermit) the litigation in the lower courts (the original Fifth Circuit panel would have acquitted Seale). 

To be sure, it would be better if the Fifth Circuit was not evenly divided and was capable of resolving this question on the merits. But where the court of appeals can't act, where the defendant has already been convicted under the arguably time-barred claim, and where the issue may not properly come to the Court in a cert. petition before the defendant is potentially harmed by such a result, it strikes me that we might have the perfect facts for certification.

Put another way, if certification is ever going to be used again, isn't this the case for it?