I see nobody is willing to comment, so here is the paragraph I thought was interesting:
Second, in response to Judge Davis’s inquiry about seeking additional guidance from the Supreme Court, Appellees maintain that Article III courts cannot decline to decide constitutional questions. Appellees’ Br. 12-14. However, if the Court desires additional guidance, the correct procedure is not to enter a decision, but to certify a question pursuant to 28 U.S.C. § 1254(2).
The question that isn't being asked is; What is 28 U.S.C. § 1254(2) and what does it do? There are 2 methods of requesting the Supreme Court to review a case. The first, we are familiar with: A petition for certiorari. That's covered in 28 U.S.C. § 1254(1):
Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;
(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
If the court of appeals really
wants direction, it can bypass (the normal method of) certiorari and have the SCOTUS intervene, directly.
Wishful thinking perhaps, but a sneaky way of telling the panel not to pull a "Wilkinson?"