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June 14, 2020

Do others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters?

As the Supreme Court finishes up a unique Term in the coming weeks, there is no shortage of "big" cases still to be resolved on topics ranging from abortion to DACA to LGBT discrimination to Prez Trump's tax returns.  But, disappointingly, we are not awaiting any big cases (or even little cases) dealing with any interesting sentencing issues or even significant criminal justice issues. This reality is partially because two cases that might have been consequential, Mathena v. Malvo on Miller's application and Walker v. US on ACCA application, both ended up getting dismissed (and replacement cases will not be heard until next Term).  But, as the title of this post suggests, I also think this reality is partially because the current Supreme Court has largely decided become particularly quiet on sentencing matters.

My fixation and frustration with this Term not having good "cases to watch" is compounded by my realization that, in recent decades, we have often gotten a number of really big and/or consequential sentencing rulings every five years or so.  Consider, for example: Apprendi v. New Jersey (2000)US v. Booker (2005); Roper v. Simmons (2005)Graham v. Florida (2010); Padilla v. Kentucky (2010)Glossip v. Gross (2015); Johnson v. US (2015).  Of course, there have been any number of big and/or consequential rulings in other years, too, with decisions like Ring v. Arizona (2002), Blakely v. Washington (2004), Gall v. US (2007), Baze v. Rees (2008), Kennedy v. Louisiana (2008), and Miller v. Alabama (2012) among those I think about a lot.  But other than maybe Hurst v. Florida (2016), Montgomery v. Louisiana (2016) and Timbs v. Indiana (2019), I have a hard time even recalling any big or consequential sentencing rulings from SCOTUS in the last few years.  US v. Haymond (2019) had the potential to be a big case, but the confusing 4-1-4 decision largely muted its impact and import.

My fixation and frustration with the absence of good sentencing "cases to watch" grows when I recall the significant number of significant sentencing issues that the Court has refused to take up in the last few years.  Cert petitions concerning haphazard application of the death penalty and extreme term-of-years sentences for juveniles and the functioning of Booker reasonableness review and the reach and application of sex offender restrictions and extreme mandatory sentences given to first offenders and the use of acquitted conduct at sentencing have all been rejected, typically without so much as a peep from any of the Justices to suggest any real interest in taking up these issues in the near future.

One might attribute recent sentencing quietness to recent SCOTUS transitions since Justice Scalia's death, combined possibly with certain Justices being eager to vote to deny cert on some issues in order to try to prevent certain issues from being decided "the wrong way" on full Court review.  But gosh knows the recent SCOTUS transitions have not prevented the Court from taking up all sorts of other important matters, and I think there is often great value in the Supreme Court bringing its spotlight to certain sentencing issues no matter how it might rule on the merits.  (The Malvo case, for example, seemed to help Virginia move forward with juvenile sentencing legislation before the Court even had a chance to rule.)

Of course, as a law professor and blogger, I have a strong professional interest in lots of SCOTUS rulings in my field, and so I may find SCOTUS quietness more problematic that others.  So I would be eager to hear if readers share my sense of SCOTUS quiesce and whether it bothers them as much as it bothers me.

June 14, 2020 at 06:26 PM | Permalink


These willful avoidances of burning sentencing issues for a "Supreme Court" of the undisputed World's No 1 Incarcerator is yet another troubling, but not Un-American, message to not acting judicial or professional. The results will be all the same, SCOTUS justices will not be invited to overseas judicial gatherings, the UK's Privy Council will keep on disrespecting the members and the U.S. Court and comity will rest in the graveyard of rotten conduct. America & Great just do not belong in the same sentence, "AMI GO HOME" is re-picking up popularity. Suum Cuique.

Posted by: Melanie L Lopez | Jun 15, 2020 6:16:41 AM

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