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October 4, 2023

Are SCOTUS Justices really targeting "bedrock principles protecting the rights of criminal defendants"?

The question in the title of this post is prompted by this lengthy new Slate commentary authored by LaDoris Hazzard Cordell headlined "The Supreme Court’s Right Flank Is Laying Groundwork To Dismantle Defendant Rights." I am not especially convinced by many claims in this piece, and the article mostly serves as a round-up of (sometimes old) dissenting comments by Justice Thomas in various constitutional cases.  But I still thought the article was worth flagging to highlight what some fear could be future work by SCOTUS in the constitutional criminal justice jurisprudence realm.  Here is part of the preamble and main headings for the piece:  

Yet, in the past two terms, Roberts and his five conservative colleagues — the court’s recently developed conservative supermajority — have thumbed their noses at judicial precedent by overturning Roe and by overturning four Supreme Court decisions that upheld affirmative action in college admissions.  Entering a new term, it’s important to understand that this is just the beginning.  One of the court’s future targets is going to be bedrock principles protecting the rights of criminal defendants.

Employing an unholy triad of disrespect for judicial precedent, originalism, and magical thinking, Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, and Chief Justice Roberts are signaling in their dissents, majority opinions, and concurrences a willingness to overrule landmark Supreme Court decisions that established basic constitutional protections in our criminal legal system.  Justice Thomas has led the way in this area.  By inviting supplicants to bring these cases back to the court, the supermajority is positioned to overturn them.  We should be very alarmed.  Here is a short list of the constitutional protections that will soon be under threat.

1. The Miranda Warning...

2. The Prohibition on Warrantless Searches and the Exclusionary Rule...

3. The Right to State-Appointed Counsel and the Right to Effective Assistance of Counsel...

4. The Right of the Public to Observe Jury Selection in Criminal Trials...

5. The Right to a Jury Pool That Reflects the Community...

6. The Right to Exercise Bias-Free Peremptory Challenges...

7. The Right of Adults and Juveniles to Be Free of Cruel and Unusual Punishment in Sentencing...

It is interesting that this list has three items related directly to jury trials without making mention of the fact that jury trials have largely vanished in the operation of our nation's criminal justice systems with only roughly 3% of indictments being resolved through jury trials.  And, this commentary leaves out the fact that certain members of the so-called "conservative supermajority" — particularly Justice Gorsuch, but also Justice Thomas — have been more protective of certain bedrock criminal procedure principles like the right to a jury trial and the requirement of proof beyond a reasonable doubt than have been many other Justices.  Moreover, as Rahimi and other lower court cases highlight, the recent Second Amendment jurisprudence led by Justice Thomas has provided new rights' claims for a new set of criminal defendants (including Hunter Biden).

That all said, there is definitely something to the idea that a serious commitment to originalism would likely result in a lot of new and different constitutional criminal justice jurisprudence in a lot of areas.  But I am not at all convinced that a majority of the current justices are seriously committed to originalism in the criminal justice arena (in part because that could likely lead to an expansion of — or at least expansive arguments regarding — many Fourth, Fifth, Sixth and Eighth Amendment rights). 

October 4, 2023 at 09:52 AM | Permalink


Despite the concerns reflected in this article, in other cases, the Justices are protecting defendants and narrowing the reach of criminal statutes: see, McDonnell v. United States (2016), Ruan and Kahn v. United States (2022); and United Stats v. Percoco (2023).

Posted by: Jim Gormley | Oct 4, 2023 11:13:32 AM

"...a willingness to overrule landmark Supreme Court decisions that established basic constitutional protections in our criminal legal system."

And that right there tells you all you need to know. Court decisions do not and never did "establish basic constitutional protections." The language of the Constitution does that. If the Constitution contains no such language, the Court has no legitimate power to "establish" them. This is, for example, the whole problem with Miranda. The Constitution says lots about the requirement that a defendant's statement cannot be compelled but zip about how particular warnings are supposedly required. As Scalia said in his Dickerson dissent, that was just made up. Ditto with the fictional "constitutional right" to abortion, which, fortunately, the Court was honest enough in Dobbs ALSO said does not exist. If legislatures want to create a STATUTORY right to abortion, go ahead. But as Scalia brilliantly noted, the Constitution says what it says and doesn't say what it doesn't say.

The Left is just furious now that it can no longer jam its agenda into the Constitution and instead actually must do the hard work of persuading the electorate -- work at which it will sometimes succeed and sometimes fail.

Well that's life guys. Grow up and quit whining. While you're at it, understand that criminals are not the only people who deserve protection.

Posted by: Bill Otis | Oct 4, 2023 11:43:43 AM

I have seen no indication in recent decisions that the U.S. Supreme Court has any interest in dismantling the right to a public trial.

There are legitimate arguments regarding whether the exclusionary rule is constitutionally sound as a remedy for Fourth Amendment violations or if, instead, we should be dismantling qualified immunity to allow those claims to be pursued in civil cases against the police department.

I don't see much push back on the right to appointed counsel. There is a big issue about what constitutes effective assistance of counsel -- particularly as things change in what defense can do. Technological and scientific discoveries add new potential sources of evidence (for both sides) every day, and what effective representation means in a more complex legal system is an open question.

I don't see much pushback on the cruel and unusual punishment prong (other than maybe against the broadening of existing doctrine). Maybe taking a step back on Miller-Montgomery and Atkins-Hall, but I do not see anything else under serious consideration.

And, since Batson, it has been unclear if the peremptory strike system is workable (and both liberal and conservative judges have quested that). I don't see a majority to go as far as eliminating peremptory strikes or a majority to reverse Batson. What is sufficient evidence of an improper strike is a case-by-case determination and I could see some adjustments at the margins of that analysis. And the law of fair cross-section is really not that favorable to defendants.

Posted by: tmm | Oct 4, 2023 12:11:26 PM

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