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June 1, 2009

How exactly do transitions impact the SCOTUS docket and cert grant decisions?

As regular readers know from various posts on docket dynamics and a recent article, I believe how the Supreme Court sets its docket and decides what to decide is often more important than just whatit actually decides.  This may be especially true in the criminal justice arena, where the Court receives thousands of (paid and unpaid) petitions from criminal defendants raising an array of criminal justice issues in an array of factual and legal settings.  Consequently, as we all have been thinking about the on-going transition from Justice Souter to (in all likelihood) Justice Sotomayor, I have been thinking lately about how transitions impact the SCOTUS docket and cert grant decisions.

For starters, I must state my strong personal belief that the presence of a new Chief Justice and Justice Alito has so far had a very positive impact on the Supreme Court's criminal law docket.  In my recent article, I complained that the Rehnquist Court in its later years devoted extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants.  Though the Roberts Court has recently decided a few very high-profile capital cases (Baze and Kennedy and Medellin), it ultimately has taken up relatively few other capital cases in the last few Terms while also finding time to consider a relatively large number of noncapital federal sentencing issues and non-sentencing federal criminal law issues.  I suspect that Justice Alito, who came to the bench after having significant experience in the federal criminal justice system, may deserve particular credit for appreciating that federal prosecutors and federal defendants benefit from having more clarity and certainty concerning (lower-profile) federal criminal laws and issues.

I suspect and hope that these nascent trends will continue with a new transition from Justice Souter to Justice Sotomayor.  Based on Judge Sotomayor's experiences as a state prosecutors and as both a district and circuit judge, I suspect she is also especially attune to the reality that criminal justice litigants and lower court benefit from having more day-to-day criminal justice issues addressed by the Supreme Court. 

A related (but short-term) question in this context concerns whether Justice Souter's (and others Justices') cert votes may right now be impacted by Justice Souter's pending departure.  This particular issue has my attention because of a notable post-Booker case being conferenced later this week, which SCOTUSblog lists here on its "Petitions to Watch."  The case is Tankersley v. US (Ninth Circuit opinion here), and it presents an interesting setting for the Justice to address guideline departures and reasonableness review after Booker.  In part because I provided some help to the lawyer for the defendant during the appeal, and in part because the legal status of departures remains opaque after Booker, I am hoping that the Justices might think about granting cert in Tankersley as a kind of welcoming gift for the new incoming Justice.

Some related posts:

June 1, 2009 at 04:27 PM | Permalink

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