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June 6, 2022

Reviewing big criminal cases lingering as SCOTUS seeks to wrap up a remarkable Term

Entering the current Supreme Court Term last fall (the term known as October Term 2021), the sentencing case that garnered the most attention was US v. TsarnaevNo. 20-443, concerning the lawfulness of the Boston Marathon Bomber's death sentence.  And, at that time, the sentencing case that I thought could be most impactful was Wooden v. US, No. 20-5279, concerning application of the Armed Career Criminal Act.  The Term also started with arguments scheduled on two potential landmark cases significantly implicating a range of criminal justice issues: New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, concerning the reach and application of the Second Amendment, and Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning when and how abortions may be criminalized.

Fast forward eight months and SCOTUS activity and jurisprudence appears ever more uncertain, in part because we now know that soon-to-be-Justice Ketanji Brown Jackson will be replacing soon-to-retire Justice Stephen Breyer and in part because we still do not know who leaked a draft majority opinion in Dobbs and how that might be impacting the Court's work.  We did get (predictable?) opinions in Tsarnaev (a win for the government) and Wooden (a win for the defendant), and a few more notable criminal justice issues were added to the SCOTUS docket. 

As we head now into the traditional finishing month of the SCOTUS Term, and especially because the Justices handed down only three civil opinions this morning, I figured it would be useful to review the considerable number of criminal cases still pending at the Supreme Court.  Here, with help from SCOTUSblog, are the big undecided criminal cases in my sights:

From the November sitting

Issue(s): Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

From the December sitting

Issue(s): Whether all pre-viability prohibitions on elective abortions are unconstitutional.
U.S. v. TaylorNo. 20-1459 [Arg: 12.7.2021]
Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

From the January sitting

Concepcion v. U.S.No. 20-1650 [Arg: 1.19.2022]
Issue(s): Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

From the February sitting

Ruan v. U.S.No. 20-1410 [Arg: 03.1.2022]
Issue(s): Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

From the April sitting

Nance v. WardNo. 21-439 [Arg: 04.25.2022]
Issue(s): (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

This list of a half-dozen cases I am eagerly awaiting does not provide a complete accounting of all the criminal-law-relevant matters still on the SCOTUS docket from this Term.  But it does comprise those cases that I think should likely be of greatest interest to sentencing fans.  (And, with roughly 30 cases left to be decided, this list comprises about 20% of what's now left for the Court to resolve.) 

Since the start of the Term, I figured we should not expect to see Bruen or Dobbs decided before the very last week of the Term.  But the fact that cases like Taylor and Conception are still pending strikes me as an interesting signal that something consequential (and divided) may be afoot in these cases.  But SCOTUS tea-leaf reading is always fraught, and perhaps this year it would be wise to just predict that everything is unpredictable.

June 6, 2022 at 11:39 AM | Permalink


I wonder if Shoop v. Twyford will be another instance of the Court taking a seemingly narrow case to take a sledge hammer to habeas corpus. But with so many rights on the chopping block, I understand why this superficially procedural case is not on everyone's top ten list.

Posted by: John | Jun 6, 2022 1:27:23 PM

I am keeping one eye on Garland vs. Gonzales from January. While technically it's about the statutory right to bond in certain immigration cases, there could be some dicta that applies more broadly.

Kemp v. U.S. from April is another case with significant habeas implications.

Posted by: tmm | Jun 6, 2022 5:17:09 PM

Thanks, John and tmm, for flagging a few more cases worth looking out for.

Posted by: Doug B. | Jun 6, 2022 7:26:51 PM

I just hope the Court can finish its Term and get the opinions out before one or more of its members is assassinated so that the Left can achieve its goals the quick and easy way.

Posted by: Bill Otis | Jun 9, 2022 9:20:34 AM

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