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June 26, 2023

Last official SCOTUS order list of Term and still no action on acquitted conduct cases (or big Second Amendment case)

Because the Supreme Court typically wraps up its Term before Independence Day, court watchers expect the last handful of pending SCOTUS cases to be resolved this week.  One notable criminal case remains, Counterman v. Colorado, though expected rulings on affirmative action and student debt relief are sure to garner the most attention.

But, as regular readers know, my SCOTUS docket attention has often been focused on the large number of acquitted conduct cases that the Justices keep relisting.  I believe there are now at least 13 pending cases coming from at least seven different circuits that raise acquitted conduct sentencing issues in some way, and the McClinton case in which I filed an amicus brief in support of certiorari has been before the Justices for more than a year.  This morning brought the last "official" SCOTUS order list, and all the acquitted conduct cases are entirely missing from the order list yet again.  I had really hoped that this final official order list might finally result in some resolution from SCOTUS, but I guess the waiting game continues.

Also notable, especially for Second Amendment fans, the Fifth Circuit's controversial ruling in Rahimi (first discussed here), which declared unconstitutional 18 USC § 922(g)(8)'s criminal prohibition on gun possession by those subject to certain domestic-violence protective orders, is now also in relist mode.  The federal government, as noted here, sought quick SCOTUS review and the case received its first formal consideration by the Justices last week.  But Rahimi is also missing from this morning's SCOTUS order list, and so will remain unclear when (as well as how) the Supreme Court will address this cert petition. 

I understand the Justices will often have one last "clean-up" conference and order list after the Justices complete its merits docket.  (As noted in this SCOTUSblog post, last year's "clean up" order list produced a few cert grants and a lot of statements concerning cert denials.)  So I think there may be one more chance for some resolution of these pending matters in this Term.  But if not resolved in the "clean-up" conference, we may have to wait until at least September for any action on these cases.

A few of many related posts:

UPDATE:  A helpful colleague pointed me to this interesting SCOTUSblog post from early 2022 that provides data on relists and eventual cert grants.  I continue to believe and fear that the seemingly endless number of relists in the acquitted conduct cases is a result of multiple statements regarding denials of cert still being polished.  But at some point time will tell. 

June 26, 2023 at 10:47 AM | Permalink


If I am counting right, it looks like the Supreme Court has granted certiorari in a grand total of sixteen cases (counting consolidated cases as one grant). Since there are seventeen argument days in the fall sessions, I would expect a significant number (at least six or seven) of grants from the wrap-up conference. While there are argument days with only one argument scheduled, the norm is still two arguments per day. If we end up with only twenty or so arguments from the first three months, that would be a very tiny number of cases.

For contrast, this term, we had just under 60 cases which works out to eight or nine cases per argument session. That would imply 24-27 cases for the fall docket which would require at least eight grants from the wrap-up conference.

Looking at the last three post-opinion order lists, the 2019 (Covid) term had four grants, the 2020 term had nine grants, and the 2021 term had three grants.

Posted by: tmm | Jun 26, 2023 11:03:02 AM

Thanks, tmm. I keep thinking they have to do more grants, and I am now expecting more than a few from the clean up order. I believe only two criminal cases are among those already granted --- both of interest to sentencing fans, covering FIRST STEP/Safety Value and ACCA drug predicates --- though there are also due process/forfeiture cases. So there is certainly plenty of "room" for more criminal cases.

I am starting to convince myself we are getting grants on these matters soon, but I should know better than to get my expectations up.

Posted by: Doug B | Jun 26, 2023 11:45:34 AM

Even more so, since one of the cases that I was counting was dismissed this morning. For those of us in state practice, the civil forfeiture is so far the big case for the fall (maybe). As always on these cases (similar to the situation in Hansen), a lot depends on how narrow or broad the ruling ends up being.

Posted by: tmm | Jun 26, 2023 3:55:05 PM

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