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June 18, 2024

Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases

In this post over at Crime & Consequences noting the Supreme Court's latest criminal statutory case cert grant (flgged here), Kent Scheidegger closes with this notable lament:  

The high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket is frustrating.  With a solid majority finally in place who are dedicated to the real Constitution that the people actually adopted, there are large piles of pseudo-constitutional barriers to justice that could be corrected.  Yet the majority doesn’t seem to be much interested.

A variation of this frustration often echoes in Orin Kerr's (bemused?) hand-wringing about the fact that the Supreme Court is completing "three straight Terms of deciding no Fourth Amendment cases."  And I certainly have been heard to express disappointment about the Justices' failure to take up consitutional questions related to acquitted conduct and other suspect sentencing practices.  

Because the current Court may not experience changes in membership for at least a few more years, there is every reason to expect its recent cert granting (and cert denial) tendencies will continue for some time.  So Kent and Orin and I and others interested in constitutional criminal procedure cases should probably expect our collective frustrations to continue.  But just why has this historically large part of the Supreme Court's docket in recent years experienced such shrinkage? 

Kent's reference to "the real Constitution," as well as cases still pending before the Justices this Term and the interesting First Amendment case in Vidal v. Elster last week, prompts me to muse with some originalist (though not likley original) thoughts on this front.  As the Vidal case highlights, even Justices who embrace originalist approaches to interpreting the Constitution can reach different conclusions in hard cases.  To borrow a notable passage from Justice Barrett's opinion, there are various "judge-made tests" used by avowed originalists, and the current Justcies may be unqiuely worried that in constitutional criminal procedure cases different Justices may reach different results due to which "judge-made tests" they adopt and how they apply that test. 

A variation of this story defines modern Second Amendment jurisprudence, especially since the Justices in Bruen made up a new originalist test for assessing the constitutionality of gun restrictions.  For two years, we have seen considerable uncertainty and variation in judicial determinations about an array of federal and state gun prohibitions, and the Justices were urged by the US Solicitor General to clean up some of the constitutional messiness via the Rahimi case.   That we still await a ruling in Rahimi suggests the Court is not finding it easy to clarify its originalist Second Amendment.  Meanwhile, at least a half-dozen other federal gun prohibitions are confounding lower courts (with more in the states), all of which the Rahimi ruling seems unlikley to conclusively resolve. 

Why am I not expecting Rahimi to conclusively clarify originalist Second Amendment jurisprudence?  Because two other cases still on the current SCOTUS docket, Smith v. Arizona (dealing with the Confrontation Clause) and Erlinger v. US (dealing with the Jury Trial right), are the continuing echoes of game-changing originalist constitutional criminal procedure rulings from 20 years ago.  In the same Term, Justice Scalia brought originalism to new prominence via Crawford and Blakely, and I am not the only academic who has made a career trying to sort through the proper way to apply an originalist Sixth Amendment to all the intricacied of modern criminal justice decision-making.  That Sixth Amendment jurisprudence has been messy and confusing since Crawford and Blakely does not mean these cases were wrongly decided or misguided (indeed, my love and admiration for the Blakely ruling endures).  But, while none of the current Justices save Justice Thomas were even on the Court when Crawford and Blakely were decided, they have surely taken note of the steady stream of cert petitions highlighting the challenges of applying an originalist jurisprudence in these spaces.

I could go on and on by noting, for example, the ambivalence of many Justices to how Justice Scalia in Jones and Justice Gorsuch in Carpenter seemed inclined to "originalize" Fourth Amendment jurisprudence.  Also notable, but still unclear, is whether the pending Grants Pass case might lead the current Court to take an originalist Eighth Amendment turn.  The oral argument did not really hint at that possibility, but one never knows. 

Against that backdrop, I will speculated that those Justices who may be most consistently interested in originalist approaches to the Constitution are also the ones who realize how truly hard and contestable originalist doctrines can prove to be, especially for criminal procedure issues in which there is a lot of text, and a lot of history, and a lot of tradition to sort through and (re)interpret.  And the whole Court surely realizes that once its jurisprudence takes a robust originalist turn (see, eg, Blakely, Bruen, Crawford and surely others), it is alwfully hard to turn back.  And, again with recent experiences in mind, an originalist turn in this arena often will entail that criminal defendant of all sorts start looking to make new arguments of all sort that the originalist turn can and should mean even more rights and protections than existing doctrines provide.

Of course, as we get new SCOTUS rulings this week and next, my thinking about originalism and constitutional criminal procedure and the SCOTUS docket may change.  But for now, I fear that Kent and Orin and others may need to be content with a whole bunch of statutory cases and immunity claims. 

June 18, 2024 at 06:10 PM | Permalink


Miranda, made up from start to finish, is by far the biggest howler in terms of respect for originalism. But there it sits. I might have another crack at it, but I'm more likely to turn it over to someone younger (not at all hard to find these days).

As for Rahimi, the government is going to win and there are going to be some significant, shall we say, changes in the approach taken by Bruen. Just about every SCOTUS litigator in town knows this.

Posted by: Bill Otis | Jun 18, 2024 6:33:46 PM

I think you mean "Gruen", Bill. I have that on good authority LOL


Posted by: MAGA 2024 | Jun 18, 2024 6:43:03 PM

MAGA 2024: Your feelings often make me chuckle.

Bill: Is it fair to say that it is because conservative Justices dislike the results of their Bruen originalist "judge-made test" for the Second Amendment that everyone expects "significant, shall we say, changes in the approach taken by Bruen"? Put another way, it seems the Justices here did not like the results of (at least one judge-made version of) the originalism game, and so they are hard at work figuring out just how they want to change the game. What the new game will be labelled and who wins at it remains to be seen.

And that's the main point of this post: originist turns in constitutional criminal procedure seem to be particularly disruptive and uncertain (and can often expand the rights of criminal defendants). This Court, I surmise, is not sufficently troubled by many non-originalist constitutional criminal doctrines to want to grapple with these realities. And so, they just deny cert on all these fronts (and get paid for doing less work).

Posted by: Doug B | Jun 18, 2024 9:01:54 PM

One might also wonder whether it is because DAs nowadays are not sufficiently ambitious. Miranda has long been Mr. Otis's bugbear. But what about Gideon v. Wainwright and Mapp v. Ohio? Did such "rights" exist 2 centuries ago? JJ. Thomas and Gorsuch clearly thought Gideon was wrongly decided.

Alternatively, perhaps some caution on the Court is the result of what they perceive to be unfavorable political environment (i.e. political control of the other two branches). Perhaps if the political environment changes, a new Attorney General might choose to challenge these precedents more aggressively.

Posted by: htjyang | Jun 18, 2024 9:47:11 PM

very interesting point, htjyang, that who and how this litigation gets developed below may influence the Justices in ways obvious and subtle.

Posted by: Doug B | Jun 18, 2024 9:56:06 PM

As a side note, I regret to see that Prof. Berman chose the popular practice of assuming that just because the justices are deciding fewer cases, that constitutes "doing less work". It's not clear to me that deciding fewer cases constitutes "doing less work" because it seems to me that the opinions, dissents, and responses to dissents are getting longer. (See, for example, the majority opinion in Dobbs. Not the longest opinion but certainly among the top of that list) Perhaps a fairer gauge of the justices' productivity might be comparing their year-to-year word count?

But I do take the point of Messrs. Kerr, Scheidegger and Berman. I've been complaining about the drop in the Court's caseload for years (though not here). We all know back in the old days when the Court took more than 150 cases/yr. Surely taking at least 80 is not too much to ask for. And for those of us who care about the Court not taking on the appearance of partisanship, I've long thought the Court should take up more business and criminal cases because it seems to me that the Court is more likely to reach unanimity or at least an unconventional majority than other types of cases.

Posted by: htjyang | Jun 18, 2024 10:41:34 PM

Doug --

"Is it fair to say that it is because conservative Justices dislike the results of their Bruen originalist "judge-made test" for the Second Amendment that everyone expects "significant, shall we say, changes in the approach taken by Bruen?"

Got me. I'll let the Court speak for itself. I expect, as htjyang puts it, an unconventional majority. Indeed there may be no majority at all, but a plurality with concurrences in the judgment but not the main opinion.

We'll know before very long.

Posted by: Bill Otis | Jun 18, 2024 10:53:13 PM

Doug --

One other question strikes me: You seem to be a (newly-minted?) fan of Originalism. From an Originalist perspective, do you think Miranda was wrongly decided?

Posted by: Bill Otis | Jun 18, 2024 10:55:49 PM

htjyang: you are right that it would be sounder for me to say that the Justices are getting paid for deciding fewer cases, not necessarily "doing less work." And the key point, as you suggest, is how the Court's smaller caseload produces longer, but not clearly better, opinions. Here is some of what I said on this topic in an article discussing the Court's past (but not quite present) affinity for taking up a lot of capital cases:

""As some commentators have noted, the significant reduction in the size of the Supreme Court’s docket has impacted not only how much work the Justices have to do, but also how the Justices do their work. Fewer cases to decide on the merits not only frees up additional time to write more and longer opinions, but it also shifts the nature and place of the Court’s work in the nation’s jurisprudence. Reflecting on the “shrunken docket,” Professor Arthur Hellman has suggested that the Supreme Court “has now become Olympian” because the “Justices seldom engage in the process of developing the law through a succession of cases in the common-law tradition,” but instead they now render decisions “largely unconnected to other cases on the docket and even more detached from the work of lower courts.” Writing in a similar vein, former Solicitor General Kenneth Starr has suggested that the Court, “in its leisure, [has] become a virtual sounding board for varying interpretive methodologies” with the Court’s work-product becoming “marked, not by growing consensus, but by an unhelpful, frustrating cacophony of jurisprudential voices.”" A Capital Waste of Time? A Critical Examination of the Supreme Court’s Certiorari Choices in Criminal Cases, 34 Ohio Northern University Law Review 861 (2008)

Bill: I have always been a strong legal textualist, and my affinity for giving particular attention to text has always given me reason to be concerned with what the drafters and enacters of any legal text had in mind and what sensible readers would sensibly understand these words to connote. (I trust you see these commitments in my constitutional disaffinity for acquitted conduct sentencing and my statutory disaffinity for sentencing appeal waivers.)

But I am not a full-fledged originalist, as I understand that term to be used in modern parlance, in part because the text of the Constitution is itself is not static (see all the amendments) and because the text of the Constitution nowhere states or even suggests that the practices of the 18th and 19th centuries must or even should conclusively determine 21st century doctrines. And I expect the Rahimi case will reveal few current Justices are full-fledged originalists. As Nelson Lund has written, "Under Bruen’s originalist test, Rahimi should be an easy case." But in our modern world with modern weapons, I will not be surprised (and will be pleased) if the Court decides our "living Constitution" allows legislatures to take reasonable steps to reduce gun violence.

In part because I am not a full-fledged originalist --- and especially because I think responsible originalism demands a deep commitment to historical research which I have not done and would not know how to do --- I cannot directly answer your question about Miranda as posed. But I can say that I do not see much direct support for all of Miranda's elements in the text of the Constitution. Given the key text of the 5A ("nor shall be compelled in any criminal case to be a witness against himself") and the 6A ("to have the Assistance of Counsel for his defence"), I have been of the view that sounder and simplier doctrines would be blanket rules that no statements by a defendant (in court or out of court) can ever be used against a person in any part of any "criminal case" and that lawyers must always be available at all times to provide assistance to anyone being criminally investigated by the government.

Posted by: Doug B | Jun 19, 2024 9:19:19 AM

"lawyers must always be available at all times to provide assistance to anyone being criminally investigated by the government."

INVESTIGATED? Thats clearly not tractable. You cant tell people being investigated by the police that theyre under investigation. Theyll flush their weed down the toilet before their public defender even gets his car started.

Sealed indictments and no-knock warrants are how you catch the bad guys red-handed and are one of the things that make this country great. Which is why libs like you are trying to curtail them. MAGA

Posted by: MAGA 2024 | Jun 19, 2024 9:44:23 AM

The Supreme Court has some fish to fry:

https://www.nationalreview.com/news/jack-phillips-appears-before-colorado-supreme-court-for-transgender-cake-lawsuit-this-case-is-about-free-speech-for-everyone/ The Court is being defied. Same with Biden's student loan forgiveness.

Posted by: federalist | Jun 19, 2024 9:55:49 AM

The problem with the current strand of originalism is that it tends toward treating the Constitution like a super-statute with precise rules. If those rules are set in stone while everything else changes, those rules become disruptive.

The alternative is treating the Constitution as a set of principles and asking how, taking into account changes in society, to apply those principles to the current situation. I would use Bruen/Rahimi as a perfect example of this situation. The weapons of 1800 were entirely different than the weapons of today. As such, there was significantly less of a need for regulations. As the weapons have become more efficient and more capable, the need for regulation has grown as well. A reasonable originalist would ask how did the Framers analyze what regulations were allowed and apply the same type of analysis to current proposed regulations rather than looking at the regulations that the Framers allowed and saying that those were the only regulations that were allowed.

The same can be said for most of the criminal procedure rules. Back in 1800, juries would hear multiple cases a day because there was little in the way of evidence available to both sides. Defining the right to effective counsel as being based on whether defense counsel performed up to the standards of 1800 would leave criminal defendants without much of a defense. And given that forensic testimony did not exist in 1800, there simply are no rules from 1800 about how to confront forensic evidence. You need to figure out how to protect the right to challenge that evidence while recognizing the mobility of skilled examiners to prevent the rule from making it impossible to present forensic evidence.

Posted by: tmm | Jun 19, 2024 10:51:09 AM

The second amendment was conceived to enable the people to keep and bear the arms needed to form a militia, and was passed precisely to take disallow arguments of compelling interest in reducing violence being used as justification to infringe on those rights. Modern weaponry means that current standardly issued military grade weapons such as the M16 must be allowed to the people for the same purpose. Scalia's dangerous and unusual weapons carve-out conflated British common law with the concerns of the framers and ratifiers of the second amendment and makes no sense in light of the amendment's purpose, which is to place ultimate power in the hands of the people. Just like regular democratic elections are needed to preserve the people's political power, ultimate power over use of force in the hands of the country's citizens is needed as well. This concern is not far fetched at all—it is very easy to envision a situation now where an outgoing president may refuse to relinquish power and get the military on his/her side. We don't need WMD available to civilians for that, but I don't see how citizens retain ultimate control without access to "modern" weaponry. The risk of tragic abuse is the insurance premium the amendment pays in order to protect the public for the long term.

Posted by: Respondent | Jun 19, 2024 12:23:03 PM

tmm—I don't see how the mobility of skilled examiners makes presenting forensic evidence "impossible". Taking away a defendant's liberty is a much greater burden, yet we spend all the resources needed to do so in order for justice to prevail. Justice requires an equal commitment to provide all the resources needed to give the defense the chance to make the best case it can make.

Posted by: Respondent | Jun 19, 2024 12:35:32 PM

tmm --

It would be a service to law if you'd write a law review article expanding on your comment. Some serious thinking about Originalism, its vices and its virtues, and where we're going with it, would be extremely useful right now.

Posted by: Bill Otis | Jun 19, 2024 2:29:39 PM

By the way, Roberts almost certainly has the opinion in Rahimi. It will almost certainly be broad and rule out a right to keep and bear arms for anyone admitting to or adjudicated as responsible for any bad conduct, with the exception of jaywalking, in keeping with his generous carve-out in Bartlett.

Posted by: Respondent | Jun 19, 2024 2:47:44 PM

Bill, it's been thirty years since I wrote a law review article, back when I had spare time as a clerk having caught up on the state equivalent of the cert pool and draft opinions. A thought piece (which needed a lot more thought) on what it would mean to treat the criminal procedure amendments as instructions to the people's agents (prosecutors and law enforcement) on what they could do on behalf of the people. The problem with being a practicing attorney, especially one senior enough to be supervising younger attorneys, is finding the spare time to write.

Posted by: tmm | Jun 19, 2024 5:28:29 PM

Respondent, I agree with you on the likely author in Rahimi. My expectation is that the reasoning is likely to be along the lines of what I sketched above, namely a broad reading of the types of concerns that supported regulations without looking for the type of exact match that some lower courts have demanded based on the language in the Thomas's opinion in Bruen.

As far as forensic examiners, the issue with this type of evidence that was not available in 1800 is whether we treat the data generated by forensic examination as the Federal Rules of Evidence suggest (data of the type relied upon by experts) that permits a second expert to analyze and reach their own conclusions or, as I fear the Smith court will hold, data that is meaningless without the original expert. If you need the original expert, then the strategy for the defense becomes clear -- delay, delay, and delay until the fellow at the medical examiner's office has now moved onto a new job across the country making it very expensive to bring that expert back for 50-100 trials. There might be unlimited resources at the federal level. There is not unlimited resources at the state level where prosecution is typically funded from county budgets.

Posted by: tmm | Jun 19, 2024 5:37:47 PM

"none of the current Justices were even on the Court when Crawford and Blakely were decided"

Justice Thomas was on the Court then.

Posted by: anon | Jun 19, 2024 7:37:11 PM

Very right, anon. Dumb of me to forget that. Post amended.

Posted by: Doug B | Jun 19, 2024 9:30:28 PM

tmm --

Well phooey. But it would be a great topic. Originalism is invoked by many but understood by few.

Posted by: Bill Otis | Jun 19, 2024 9:44:15 PM

federalist --

"https://www.nationalreview.com/news/jack-phillips-appears-before-colorado-supreme-court-for-transgender-cake-lawsuit-this-case-is-about-free-speech-for-everyone/ The Court is being defied. Same with Biden's student loan forgiveness."

Just so. The Colorado Supreme Court is a piece of work. They've been hounding the cake maker since forever. And it was the Colorado Court that kicked Trump off the primary ballot by an alleged interpretation of the 14th Amendment so bizarre that it lost 9-0 in SCOTUS.

I guess their theory was that Trump is so much a threat to democracy that the way to SAVE democracy was by making sure the voters could only vote for one candidate (Joe). In other words, they had to destroy democracy in order to save it.

Far out!

Posted by: Bill Otis | Jun 19, 2024 10:12:34 PM


Just as moving abortion to the states where it can be voted on was the end of democracy.

The word doesn’t mean what they think it means.

Posted by: TarlsQtr | Jun 20, 2024 1:09:31 AM

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