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October 6, 2019

Lots of SCOTUS previews as a new Term starts with a criminal bang

Tomorrow morning is the first Monday in October, which means the start of Supreme Court oral arguments kicking off a new Term for the Court. This ABA Journal piece, headlined "SCOTUS opens new term with criminal law cases addressing insanity defense and unanimous juries," highlights how the Term start with extra intrigue for criminal justice fans. This piece starts this way:

The U.S. Supreme Court has several blockbuster cases in its new term — on gay and transgender rights, federal immigration enforcement and gun regulation. But before it gets to any of those, the court on the first day of the term will take up two criminal law cases raising significant questions, even though only a handful of states are affected by each.

In Kahler v. Kansas, the first case up for argument on Oct. 7, the question is whether the U.S. Constitution permits a state to abolish the insanity defense. Only four states besides Kansas—Alaska, Idaho, Montana, and Utah—do not recognize that defense.

In Ramos v. Louisiana, the justices will consider whether the 14th Amendment fully incorporates against the states the Sixth Amendment’s guarantee of a unanimous jury verdict.

“Both of these cases speak to a larger lesson,” says Brian W. Stull, a senior staff attorney with the American Civil Liberties Union. “The court, with justices on the left, center, and right, has been vigilant in insisting at a minimum on the common-law protections that defendants enjoyed at time of the founding.”

SCOTUSblog has these previews of Kahler and Ramos:

Bloomberg Law has this preview article looking at a number of the criminal cases for the term under the headline "Bridgegate, D.C. Sniper Feature in Packed SCOTUS Criminal Term."  Here is how it starts:

An action-packed U.S. Supreme Court term kicks off Oct. 7, and the criminal docket has a little something for everyone—the insanity defense, the D.C. sniper, the death penalty, the Fourth Amendment, and the New Jersey corruption saga known as “Bridgegate.”

These disputes and others mark the latest crime and punishment tests for the Roberts Court, which, after Justice Brett Kavanaugh replaced Justice Anthony Kennedy, is on more solid conservative footing.

But criminal cases can scramble the usual 5-4 line-ups, and in Kavanaugh’s first full term — Justice Neil Gorsuch’s third — court watchers are eager to see how the justices tackle these weighty questions.

October 6, 2019 at 10:41 PM | Permalink


Kahler is interesting because there are so many different ways that different justices could approach this issue given the evolution of the insanity defense since 1789 and 1868. Kahler raises both a "due process" claim (which theoretically looks at history) and an Eighth Amendment claim (which theoretically looks at current values). I can easily the question of which insanity defense is required by the Constitution becoming a major issue raised by those justices supporting Kansas's position. I can also see a Crawford-like decision in which the Supreme Court finds that there is a constitutional mandate for some type of insanity defense and leaving for another day the exact minimal standards that a state must include in its insanity defense.

Posted by: tmm | Oct 7, 2019 11:09:00 AM

I'd be interested in hearing the oral arguments in this case. One thing that occurred to me recently is whether the Eighth Amendment applies given that we're talking about the admissibility of evidence at trial as opposed to the imposition of a particular sentence.

Posted by: Erik M | Oct 7, 2019 1:08:52 PM

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