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October 13, 2009

Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?

As detailed in this SCOTUSblog post, three of the four cases in which the Supreme Court granted cert today involve criminal justice issues:

The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges. The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive....

The other newly granted cases raise these issues: the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred (U.S. v. Marcus, 08-1341, a case in which Justice Sonia Sotomayor is recused, presumably because she was on the Second Circuit Court panel that decided the case earlier);... and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client (Holland v. Florida, 09-5327).

And, as noted in this postfrom a few weeks ago, three other cases with big-time criminal justice implications were also recently put on the SCOTUS docket.  Add to all this the fact that this Fall's schedule already included a whole bunch of very important criminal justice cases, and I am already prepared to predict that the most notable feature of OT 2009 is its large and consequential criminal law docket.

Though lots of forces surely have been playing a role in the recent docket dynamics, I cannot help but speculate that the addition to the Court of two former prosecutors has been an important factor in these developments.  Both Justices Alito and Sotomayor likely find a range of criminal law topics inherently more interesting than their colleagues, and they also likely understand more fully how important clarity and certainty is to the work of all criminal justice practitioners.  (Another factor could also being the likely upcoming retirement of Justice Stevens: he has always been very engaged in criminal justice cases, and he may be eager to have one last bite at a bunch of criminal law apples.)

Some related old and new posts on related issues:

October 13, 2009 at 11:15 AM | Permalink


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Tracked on Oct 13, 2009 5:41:04 PM


Maybe part of an explanation revolves around the persistent drift to hyper-proceduralism in criminal law, particularly in habeas cases, and particularly in some circuits, where the law has become a virtual thicket of springes and traps for the unwary. Whereas at one time there was a concern that petitioners could too easily blow off state process to skip straight to federal court, now there is ample basis to be concerned, to the contrary, that well-informed, diligent petititioners can do everything in their power to seek review and still be stymied by the combination of state and federal procedural rules (and, often, incompetent counsel).

Perhaps the court will once again provide some counter-momentum to a pendulum swinging out of the reasonable range of jurisprudence (as it did in the other direction 1980s/1990s, both before and after AEDPA). At least, I hope so.

Posted by: Florida atty | Oct 13, 2009 3:37:11 PM

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