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June 30, 2006

Initial reflections on an error-correction SCOTUS term

The Supreme Court concluded its work for the 2005 Term less than 24 hours ago, and term-in-review materials are already plentiful: Joan Biskupic has this effective USA Today overview, and comprehensive assessments of the term can be found in interesting documents from Georgetown's Supreme Court Institute (available here) and from the ACLU (available here).

Against the backdrop of the previous two terms — which brought Blakely and Crawford and Booker and Roper and a number of big police practice decisions — the criminal law part of the Court's docket in the just-completed term feels quite uneventful.  Even notable death penalty rulings were not especially significant as a matter of doctrine: Marsh and House are interesting because of the innocence debates, Hill is interesting because the Court keeps ducking Eighth Amendment question about lethal injection protocols. 

As suggested in posts here and here, the most interesting aspect of the early Roberts Court in the criminal justice area is how it is deciding matters, rather than what it is deciding.   Notably, some commentors here, and Orin Kerr here, and the folks at De Novo here and here are effectively exploring the reality that the Roberts Court assumed an "error-correction" role in its aproach to criminal justice matters.  Notably, this term the Court had a large number of per curiam reversals in criminal cases, and even many decisions rendered after full argument were often focused principally on making sure lower courts understood what they did wrong.

Right now, I do not have many deep thoughts on the interesting question of whether the Supreme Court should embrace an error-correction role in the criminal justice arena.  But I can suggest that personnel transitions might make this past Term unique and just the calm before the storm.  Among other cases to watch, the Supreme Court has two big Blakely issues on the docket for the coming fall: Cunningham, which addresses Blakely's applicability to California's sentencing law, and Burton, which addresses Blakely retroactivity.  Either case (or both) could easily result in an opinion of much greater consequence than any ruling from the Court this past term.

June 30, 2006 at 08:40 AM | Permalink


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