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October 27, 2020

With Justice Barrett seated, isn't it now time to pack the Supreme Court ... with constitutional criminal procedure cases?

The question in the title of this post is prompted by all the intense Court-packing talk that I am seeing in some quarters this morning, combined with my hope that Justice Amy Coney Barrett might ultimately follow the path of the late Justice Antonin Scalia in developing a more rights-friendly jurisprudence regarding the Fourth and Fifth and Sixth Amendments.  Long-time readers know that Justice Scalia (as well as Justice Thomas) played critical roles in expanding Fifth and Sixth Amendment rights in cases like Apprendi and Blakely and Booker, and Justice Scalia's vision of constitutional vagueness was hugely consequential in the Johnson ACCA decision.  Notably, in recent Terms, Justice Gorsuch has followed Justice Scalia's jurispruidental path in the vagueness arena, and he also has shown much more affinity for a much more expansive view of Fourth and Sixth Amendment rights than most of his conservative colleagues.

I highlight these realities largely because all smart litigants, particularly appellate advocates, need to know their bench and need to adjust litigation and appellate strategies in light of the jurisprudential inclinations of that bench.  Even before Justice Amy Coney Barrett joined SCOTUS, the recent appointments of Justice Gorsuch and Kavanaugh meant that the Court could already be expected to vote certain ways on certain hot-button civil issues.  Justice Barrett's addition to the Court would seem to make certain expected outcomes even more likely.  But in the criminal justice arena, even with Justice Barrett now joining the Court, there are an array of important constitutional criminal procedure issues which I believe (or at least hope) do not have a jurisprudential outcome pre-scripted by the standard left-right divide.

Critically, matters of constitutional criminal procedure on topics ranging from qualified immunity to the operation of criminal registries to the trial penalty to the use of acquitted and uncharged conduct at sentencing impact literally thousands of Americans every single day in this nation.  At a time of long-overdue and still growing concerns about the operation of our criminal justice systems and with considerable bipartisan support for a range of reforms, I sincerely hope that advocates and litigants will seize this moment to try to pack the new Supreme Court with lots of lots of constitutional criminal procedure cases.

A few prior related posts:

October 27, 2020 at 11:04 AM | Permalink


It is hard to tell with this Court.

I think Justice Thomas is very hostile to the remedy of suppression. Because he would prefer to overturn Mapp, he is willing to pare back qualified immunity to justify a future decision limiting the remedy for a rights violation to a civil claim, but I am not sure that the "center" of this Court will go along with him on qualified immunity. With Ginsburg gone, he may only have Justice Sotomayor agreeing with him on qualified immunity (although from very different motivations).

I think some on the right are inclined to a property-trespass based version of the Fourth Amendment. As such, they are more likely to support stricter limits on warrantless searches of the home and curtilage to avoid getting into the weeds of reasonable expectations of privacy. Similarly, the distaste for the administrative state leads them to look with distaste on guidelines that have judges find facts to determine sentences.

But if you are looking for a bold expansion of IAC claims or collateral review or Miranda, I don't think that you will find much sympathy from the current majority.

Posted by: tmm | Oct 27, 2020 2:23:21 PM

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