Terrific ABA review of SCOTUS criminal work during Oct 2018 Term

LawProf Rory Little regularly prepares for the American Bar Association an end-of-Term review of the Supreme Court's work in criminal cases.  A decade worth of this terrific work is available at this link, and just recently added there is this 48-page accounting of the October 2018 Term.  The whole document is terrific, and here is the start of the first section under the heading "Brief Overview of the 2018-19 Term, Criminal Cases" (emphasis in original):  

As far as criminal cases go, there are two “big stories” from the past Term, one descriptive and the other substantive impact of the Term’s “big” cases. Let’s do the descriptive first.

This was the first Term in which two new Justices appointed by President Trump served together. Justice Gorsuch was appointed at the end of the Term before last, so this was his second full Term. Justice Kavanaugh served almost all of this Term; his confirmation was slightly delayed (as you may recall), so he actually first took the bench on Monday, October 8, the second week of the Term.  Still, the big question was, how would these two new Justices affect the Court?

What we now know is that, contrary to the general picture of the prior Term, the Justices divided in a remarkably large number of different variations.  Overall, there were 67 argued cases, plus 5 summary reversals, for a total of 72. I count 26 of the 72 as “criminal law and related,” or 24 of the 67 argued.  Of the 72, there were 20 decisions decided by a 5-4 vote -- and of these, there were 10 different variations of which Justices made up the five. This is an unusually high number. It seems that the current Justices are still trying to find their way, and (happily) are not cemented to always-predictable results.  I count 10 of the 5-4 decisions as criminal; in five of those the “liberal” bloc prevailed. If we think of the four liberal Justices as Ginsburg, Breyer, Sotomayor and Kagan, the question becomes: who was the fifth Justice? Interestingly, it was Gorsuch in three, Roberts in one, and Alito in one. (Kavanaugh was not the fifth vote in any 5-4 liberal criminal win, but he did write the strong majority opinion in Flowers, see below, a pro-defendant Batson death penalty decision.)

Justice Gorsuch’s pro-defense votes in at least four cases (Davis and Haymond, plus dissents in Gamble and Mitchell) indicate that he continues the “libertarian” streak that his predecessor Justice Scalia sometimes exhibited.  At the same time, Justice Gorsuch’s majority opinion in Bucklew, a death penalty case in which he boldly wrote that “last-minute stays should be the extreme exception,” demonstrates a strong pro-government position on capital punishment. Interestingly, despite their common appointment source, Justices Gorsuch and Kavanaugh did not always agree (they had only a 56-70% overall agreement rate), and were on opposite sides in six or more criminal cases. Is there a lesson here? Wait and see, is my advice.

Substantively, because 23 of the 67 argued cases (or 25 of the 72 total) were criminal lawor-related decisions, we can see that over a third of the docket is “criminal.” This is about normal for the Supreme Court’s docket. With 25 criminal-and-related decisions, of which I’d say 17 were “pure criminal,” there is a lot to digest (as the following 38 pages demonstrate).  Only a few highlights can be summarized here.

What was the “biggest” criminal law decision of the Term?  Of course it depends on your interests, and perhaps your ideology.  Certainly the Gamble case, affirming the “separate sovereigns” exception to the Sixth Amendment’s Double Jeopardy Clause despite calls for overruling it, was big news.  Meanwhile, the Timbs decision makes it clear that the Eighth Amendment’s “no Excessive Fines” Clause applies fully to the States. (In a similar vein, next Term the Court will decide whether the Sixth Amendment’s unanimous jury requirement is similarly “incorporated,” in Ramos v. Louisiana). Meanwhile, the Fourth Amendment decision in Mitchell suggests that a majority is ready to broaden the concept of “exigent circumstances” as a categorical exception.  And finally, the Haymond decision extends Apprendi to the revocation of supervised release, which Justice Alito in dissent calls “revolutionary;” and the decision in Rehaif demonstrates a strong commitment to requiring mens rea for every factual element of an offense (in that case, knowledge that one belongs to a class of persons prohibited from possessing firearms).