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June 20, 2018

Is it too early to conclude the new guy, Justice Neil Gorsuch, is going to often(?) favor federal criminal defendants in close cases?

There are still a couple of criminal cases left on the SCOTUS docket, including the big Fourth Amendment case Carpenter, so it is too soon to do any big "review of the Term" posts.  But I have seen Kenneth Jost already has this a mini-accounting in recent tweets:

Rosales-Mireles was 10th signed decision favoring defendants or habeas petitioners; Chavez-Meza was 3d signed decision favoring govt. Still pending: Currier v. Virginia (double jeopardy).

In criminal law cases, govt's s three wins are relatively insubstantial (e.g., Chavez-Meza); the 10 wins for defense include two significant 4th A decisions (Byrd, Collins); two on federal sentencing (Hughes, Rosales-Mireles); etc.

The rulings in the last two federal sentencing cases this Term on Monday (basics here) also has me looking back on some of the cases I have been watching closely this Term.  And that look back has led me to notice that the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them.

At the end of the Term, the SCOTUSblog folks always do a great run of the numbers on various voting patterns.  But my cursory review suggest that Justice Gorsuch is most consistently breaking from his conservative colleagues in cases involving federal criminal appeals in order to vote for the defendant.  Specifically, Rosales-Mireles and Marinello are cases in which Justice Gorsuch broke from two of his conservative colleagues, Class and Hughes are examples of federal criminal appeals in which Justice Gorsuch broke from three of his conservative colleagues, and in Dimaya (which is quasi-criminal) he broke from all four of his conservative colleagues.

Critically, the story here is not one that entails a vote for the criminal defendant in all contested criminal cases: Justice Gorsuch was on the state's side in the habeas capital case McCoy and was also a key vote for the government in Jennings (which is quasi-criminal).

Though this voting record reflects only one full Term of service, I am prepared to assert that Justice Gorsuch may already be a more "gettable" vote for federal criminal defendants than was the late Justice Scalia, the jurist he replaced on the High Court.  In the years to come, this reality may prove important not only with respect to how the Justice decided key cases, but also with respect to how the Justice decide which cases to decide.

June 20, 2018 at 05:34 PM | Permalink


Yes, it's too soon. Like many Conservatives, Gorsuch is likely to follow what he believes is the law, regardless of any policy preferences he has. I would assume that he is likely to vote for what he thinks the Constitution and/or relevant laws say.

Posted by: William Jockusch | Jun 20, 2018 11:02:30 PM

Justice Gorsuch will follow his feelings. These may or may not reverse the feelings of other Justices who set precedent. One of the most powerful feelings all these Justices is the feeling that the lawyer profession needs more jobs and work to do, more nitpicking, more procedure, more disputation.

Posted by: David Behar | Jun 21, 2018 12:01:33 AM

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