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October 14, 2022

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

October 14, 2022 at 11:46 AM | Permalink


Seems like Ms. Rao expects Justice Jackson to be an advocate for a pre-existing bias rather than decide the particular case on the facts, briefing and argument. Didn't know that's how a Justice is supposed to act, but I guess things are different when you've put in time as a Public Defender.

Also there's the question of precedent, see Watts, but precedent only counts when it's one liberals like, https://ringsideatthereckoning.substack.com/p/stare-decisis-legitimacy-and-liberals.

Posted by: Bill Otis | Oct 14, 2022 8:06:02 PM

Mr. Otis, after the Dobbs decision, I don't think precedent matters a damn.

Posted by: anon12 | Oct 15, 2022 12:12:40 PM

anon12 --

Did you have the same grumpy attitude about overruling precedent when Roper v. Simmons overruled Stanford v. Kentucky? Did precedent matter a damn then?

Posted by: Bill Otis | Oct 15, 2022 3:33:10 PM

Dobbs withdrew a constitutional right that had been recognized for 50 years and affected countless thousands of women; and will affect countless hundreds of thousands more in the future. Hardly comparable to Roper. I may be grumpy, but I stand by my opinion: after Dobbs, precedent doesn't matter a damn.

Posted by: anon12 | Oct 16, 2022 4:11:12 PM


Roe was one of the most flawed decisions in the history of the court. Even countless liberal scholars felt so, including RBG.

You are arguing the result, not the merits, of the decision.

Posted by: TarlsQtr | Oct 17, 2022 9:38:58 AM

anon12 --

You unintentionally make my point. In my view, the standards for evaluating precedent are neutral and do not depend on whether it favors liberals (Roe) or conservatives (Stanford v. Kentucky). You are free to disagree (and, obviously, do).

P.S. Dobbs did not withdraw a constitutional right. It determined, in an analysis you don't contest on the merits, that there NEVER WAS such a right, not in the Constitution anyway, any more than segregationists had a "right" to exclude blacks. They never had such a right to start with, and Brown simply corrected an earlier misapprehension.

Posted by: Bill Otis | Oct 17, 2022 10:25:50 AM

Since when did I need to start bringing popcorn to the comments...

Posted by: atomicfrog | Oct 17, 2022 7:42:00 PM

anon 12 - First, the Supreme Court has been overruling precedent since 1810. Whether a person supports or does not support a particular precedent depends entirely upon whose ox is being gored. There is enough grumpiness on this score to go around.

This ultimately though is why elections are important and political parties that desire to make judicial appointments to bend the law their direction ought not rig the primary rules to coronate a potential nominee because she failed to win a straight primary 8 years prior. Incidentally, this is not an endorsement of Senator Sanders - far from it. I wonder though whether any of my fellow Democrats ever contemplate what the U.S. Supreme Court would look today like following a Webb Administration.

Posted by: C Level | Oct 20, 2022 6:18:50 PM

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