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January 27, 2009

Some mid-Term SCOTUS reflections and predictions

As noted here at SCOTUSblog, the Justices have now started another long recess.  I suppose they deserve some time off after the flurry of SCOTUS action (much of it involving criminal justice topics) in recent weeks, though the Justices surely have the kindest work schedule of any top government actors inside the Beltway.  (I am, of course, jealous because I would love four weeks away from snowy Ohio this time of year.)

The break seem like a good time to take stock of the Term so far and to start making predictions for the SCOTUS months ahead.  And, with all the other DC transitions afoot, perhaps folks would also like to comment more broadly on the overall work of the Roberts Court and on its likely future.  Here are a few of my own reflections and predictions, with my usual focus on criminal justice and sentencing issues.

First, though the Court is keeping busy, the Court has neither decided nor has on the docket any obvious blockbusters.  And, in light of all the blockbusters last Term (Heller, Baze, Boudemine, Gall and Kimbrough), the lower profile is perhaps intentional and probably should be welcomed.

Second, the Court continues to show interest is lots of criminal justice issues, including lots of sentencing matters.  Though not involving blockbuster concerns, cleaning up circuit splits and some error-correction in various criminal settings remains a priority for this Court.  Notably, the Court seems able to issue opinions in criminal justice cases more quickly than in other areas, perhaps in part because the "smaller" cases the Court is now taking do not prompt multiple opinions (and can often be resolved unanimously).

Third, as evidenced by the recent summary reversals in Spears and Nelson (discussed here), as well as the consequential ACCA ruling in Chambers (discussed here), sentencing issues still will often get more defendant-friendly treatment in the Supreme Court than in just about any other appellate court.  However, as the Ice ruling limiting Apprendi shows, even some purportedly liberal justices do not find all defense sentencing claims compelling.  And, as other rulings document, criminal defendants raising non-sentencing issues still fare much better in the Ninth Circuit and some other lower courts than in front of the Justices.

Fourth, the new President and his Administration's legal team surely could and likely will quickly shift the nature and context of some on-going constitutional debates.  Most obviously, with the closing of GITMO, the Justices won't have to save space and energy for all the detainee issues that helped keep them busy over the last five years.  In turn, I suspect the Second Amendment will soon become a key battleground for constitutional controversy over who gets to make decision about how best to balance liberty and security.  (I note here the Court has not yet resolved this Term's one Second Amendment sleeper case Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.)

Fifth, the Justices should have no problem continuing to find sentencing issues to ponder in the months and years ahead.  At some point it will have to take up a post-Booker acquitted conduct case, and there are plenty of small and large post-Bookercircuits splits that need the Court's input.  In addition, all the federal and state sex offender legislation, not to mention a host of technocorrection innovations, should keep the cert pool full of cert-worthy goodies.

January 27, 2009 at 10:34 AM | Permalink


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How long until Bush appointees and Obama appointees begin to butt heads when it comes to sentencing? The Bushites will surely be going for longer prison terms while Obamites will surely look for rehabilitiation in many forms.

Posted by: JT | Jan 27, 2009 11:21:59 AM

We've been waiting a while for a decision in the Massachusetts drug-certificate-of-analysis case (raising the question of whether such evidence is "testmonial" under Crawford v. Washington). I wonder if that is going to be a 5-4 donnybrook (and unlike many other issues, I am not sure what the lineup would be!).

Posted by: Observer | Jan 27, 2009 11:43:54 AM

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