With Justice Barrett seated, isn't it now time to pack the Supreme Court ... with constitutional criminal procedure cases?
The question in the title of this post is prompted by all the intense Court-packing talk that I am seeing in some quarters this morning, combined with my hope that Justice Amy Coney Barrett might ultimately follow the path of the late Justice Antonin Scalia in developing a more rights-friendly jurisprudence regarding the Fourth and Fifth and Sixth Amendments. Long-time readers know that Justice Scalia (as well as Justice Thomas) played critical roles in expanding Fifth and Sixth Amendment rights in cases like Apprendi and Blakely and Booker, and Justice Scalia's vision of constitutional vagueness was hugely consequential in the Johnson ACCA decision. Notably, in recent Terms, Justice Gorsuch has followed Justice Scalia's jurispruidental path in the vagueness arena, and he also has shown much more affinity for a much more expansive view of Fourth and Sixth Amendment rights than most of his conservative colleagues.
I highlight these realities largely because all smart litigants, particularly appellate advocates, need to know their bench and need to adjust litigation and appellate strategies in light of the jurisprudential inclinations of that bench. Even before Justice Amy Coney Barrett joined SCOTUS, the recent appointments of Justice Gorsuch and Kavanaugh meant that the Court could already be expected to vote certain ways on certain hot-button civil issues. Justice Barrett's addition to the Court would seem to make certain expected outcomes even more likely. But in the criminal justice arena, even with Justice Barrett now joining the Court, there are an array of important constitutional criminal procedure issues which I believe (or at least hope) do not have a jurisprudential outcome pre-scripted by the standard left-right divide.
Critically, matters of constitutional criminal procedure on topics ranging from qualified immunity to the operation of criminal registries to the trial penalty to the use of acquitted and uncharged conduct at sentencing impact literally thousands of Americans every single day in this nation. At a time of long-overdue and still growing concerns about the operation of our criminal justice systems and with considerable bipartisan support for a range of reforms, I sincerely hope that advocates and litigants will seize this moment to try to pack the new Supreme Court with lots of lots of constitutional criminal procedure cases.
A few prior related posts:
- Some interesting early accounting of Judge Amy Coney Barrett's interesting Seventh Circuit criminal justice work
- Is Judge Amy Coney Barrett the first SCOTUS nominee to disclose multiple blog posts in her Senate questionnaire?
- Additional accountings of Judge Barrett's Seventh Circuit criminal justice work
- Final looks at Judge Amy Coney Barrett's criminal justice record before she starts to build a criminal justice record as a Justice
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