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June 13, 2022

Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases?

Images (5)The Supreme Court this morning handed down an order list and five new opinions (partially blogged here and here).  Though the Court issued a number of opinions on criminal (or criminal-adjacent) procedural issues, we did not today get a ruling in any of the six notable cases that I flagged in this post last week.  As of this writing, SCOTUS has 24 more argued cases to resolve this Term, and there will be additional opinions released on Wednesday morning.  (If five opinions per day becomes the new normal for the Justices, the Court could wrap the current Term by the end of this month with just two "opinion days" during each of the last two weeks of June.)

Most Court watchers have long expected the "biggest" cases, such as the Second Amendment case and the abortion case (Bruen and Dobbs) to not be released until the very end of the Term.  But two "little" sentencing-related cases are also taking a very long time to come out.  US v. TaylorNo. 20-1459, which concerns the definition of a "crime of violence" for application of a 924(c) sentencing enhancement, was argued more than sixth months ago during the Court's December sitting.  And Concepcion v. USNo. 20-1650, which concerns proper resentencing considerations in a crack offense resentencing under Section 404(b) of the FIRST STEP Act, was argued nearly five months ago during the Court's January sitting.  Only very high-profile cases are still outstanding from the December sitting other than Taylor, and Conception is the only case from the January sitting now still unresolved.

The standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions.  And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the "standard" ideological lines.  Justice Gorsuch, of course, tends to vote in favor of (non-capital) criminal defendants more than most of his conservative colleagues and Chief Justice Roberts and Justice Kavanaugh also can be somewhat more pro-defendant in some settings.

Notably, the SCOTUSblog accounting of who has written which majority opinions so far indicates that neither Justice Gorsuch nor Justice Kavanaugh has authored a majority opinion from the January sitting; we might reasonably expect (though cannot be certain) that one of those two was tasked with authoring the Court's opinion in Conception.  Cases from the December sitting are harder to game out because a few more are still unresolved; but since Justice Alito apparently had Dobbs, Justices Breyer, Kagan, Gorsuch and Kavanaugh are those so far without majority opinions from the December sitting and one of them might reasonably be expected to be authoring the Court's opinion in Taylor.

Of course, this analysis is all just tea-leaf-reading and speculation.  We could get other opinion authors or unanimous opinions or who knows what from the Court (especially given that various statutory construction and sentencing jurisprudence doctrines could be brought to bear in these cases).  But, especially within a Term generating so much news from other cases, I am tempted to start speculating that Taylor and/or Conception could prove to be sleeper cases.   (I cannot help but note that 18 years ago around this time, I started speculating about whether Blakely v. Washington might be a brewing blockbuster.  I will be truly shocked if either Taylor or Conception gets anywhere close to the jurisprudential earthquake of Blakely, but I find myself growing ever more eager to see what's what in these sentencing cases.)

Anyone else have speculations or thoughts about these lingering sentencing cases (or any other aspect of the eventful SCOTUS Term now winding down)?

June 13, 2022 at 11:54 AM | Permalink

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