I have to retract part of my explanation of how 1254(2) works. I was wrong.
It was called to my attention on both MDShooters and CGN, So I just refreshed my memory on the Supreme Courts' Rule 19. To recap, 28 U.S.C. § 1254(2) reads as follows:
Quote:
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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.
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Why am I wrong? The Supreme Court is reading the language of 28 U.S.C. § 1254(2) to say:
upon such certification the Supreme Court may give binding instructions;or
[may] require the entire record to be sent up for decision of the entire matter in controversy.
The above reading squares with Rule 19 and what the Court did in
United States v. James Ford Seale, a 2009 case mentioned at MDShooters and alluded to by "Fabio" at CGN.
It obviously doesn't matter if I agree or disagree with this interpretation. It is what it is.