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| Sharon Fairley |
Based on the list of cases decided on the merits, less than 25% of the court's criminal justice decisions last term were unanimous, as compared to over half of the court's decisions in other kinds of cases.[1]
In fact, the criminal justice cases accounted for over half of the court's 6-3 decisions. Last term, among the 18 merits cases related to criminal justice, 12 were 6-3 decisions.
However, the 6-3 decisions did not always reflect the ideological split of the justices. In almost half of the 6-3 cases, one or two of the conservative justices joined one or two of the liberal justices in dissent, with little consistency as to how the justices lined up. And these "nonidealogical" 6-3 splits tended to occur when the justices were interpreting a federal criminal statute.
As such, it can be challenging for litigants to anticipate how the court might approach these kinds of cases.
In addition, last term — relative to the prior term — the justices demonstrated a greater willingness to express their differences of opinion by authoring separate decisions. For the criminal justice merits cases decided during the 2023/2024 term, the average number of opinions written increased to 3.2 per case, up from 2.5 during the prior term.
There are issues to be addressed this term that could similarly result in agreement as to outcome, but differing views as to the underlying legal theory or the scope of the majority's holding, as illustrated by the court's output in Bondi v. VanDerStok, decided in March.
In that case, the court decided 7-2 that the Gun Control Act permits Bureau of Alcohol, Tobacco, Firearms and Explosives to regulate so-called ghost guns. Accompanying the majority and dissenting opinions were three concurrences outlining the justices' different views as to why.
The justices have had ample opportunity in recent terms to convey their various views on firearms regulation in cases such as New York State Rifle Association v. Bruen in 2022, and U.S. v. Rahimi in 2024. In Rahimi, the court brought a sigh of relief to gun control advocates by upholding the federal statute that prohibits gun possession by individuals subject to a domestic violence protection order.
The court took on slightly fewer merit cases related to law enforcement and criminal justice issues this term compared to last term — 15 this term, compared to 18 last term. And, comparable to prior terms, about one-third of the court's criminal justice cases involve issues related to the interpretation of federal criminal statutes.
The statutory interpretation cases the court decided last term resulted in at least two important wins for criminal defendants as the court narrowed the reach of two widely used federal criminal statutes.
In Snyder v. U.S., the court in June 2024 held that Title 18 of the U.S. Code, Section 666, only applies to public corruption schemes involving bribery, not those involving gratuities.
And in its Fischer v. U.S. decision the same month, the court interpreted a subsection of Title 18 of the U.S. Code, Section 1512, a federal criminal provision which title refers to witness tampering. The specific subsection at issue, Section 1512(c)(2), applies to any person who corruptly "otherwise obstructs, influences, or impedes any official proceeding."
Based on the breadth of this statutory language, federal prosecutors have employed the statute quite broadly to various forms of obstructive conduct. The court took Fischer as an opportunity to dial back potential government overreach with the statute by limiting its application to obstructive conduct involving witness or evidence tampering.
Of great interest to the defense bar this term, the court will again address the scope of a tremendously important weapon in the federal prosecutor's arsenal: the federal mail and wire fraud statutes. In Kousisis v. U.S., the court will decide whether certain government contract agreements can be construed as property rights.
In recent years, the court has certainly demonstrated a grave concern about government overreach with these statutes in decisions such as Kelly v. U.S. in 2020, and Ciminelli v. U.S. in 2023.
On May 15, the court decided Barnes v. Felix, a case of tremendous interest to the law enforcement community. In Barnes, the court was asked to address the U.S. Court of Appeals for the Fifth Circuit's application of the "moment of threat" doctrine in police use-of-force cases. It will likely be considered a landmark decision, because the issue to be decided arises with great frequency in such cases.
In Graham v. Connor, decided in 1989, the court established that a Fourth Amendment inquiry into the reasonableness of an officer's use of force requires an assessment of "the totality of the circumstances."
With Barnes, the court granted certiorari to resolve a disagreement among the circuits regarding whether Graham's totality-of-the-circumstances inquiry should be limited to the moment at which force is used, or whether situational factors leading up to the encounter, including the officer's conduct, may also be considered.
There were numerous briefs submitted by amici, including that of the U.S., whose brief supported the position taken by the family of an individual who was shot and killed by a police officer.
Historically, the court has been reluctant to prescribe too much specificity as to how courts assess the reasonableness of an officer's use of force, preferring a flexible inquiry without bright-line rules favoring or disfavoring specific law enforcement tactics. In Barnes, the justices unanimously held that the Fifth Circuit's moment-of-threat approach is inconsistent with the Fourth Amendment's totality-of-the-circumstances inquiry outlined in Graham.
The court has demonstrated limited, or perhaps sporadic, interest in taking on Fourth Amendment cases on the merits. Until this term, the court had taken on only one Fourth Amendment issue[2] since the 2020/2021 term, when it decided four significant cases.[3]
Because the court denies certiorari in so many Fourth Amendment cases each term, the justices' willingness to hear Barnes is a reminder that they are more willing to take on questions that provide an opportunity to correct doctrinal errors by the lower courts, rather than review decisions in individual cases that appear wrong or unfair.
The cases to be decided in the next few weeks represent a spectrum of potential impacts on law enforcement conduct and the criminal justice system. Some will have limited effect, while others have potentially sweeping consequences.
For its part, the decision in Barnes is certain to compel law enforcement agencies to review and revamp their use of force training and policies. On the other hand, in Gutierrez v. Saenz, the court will decide an issue with more limited scope — whether a Texas man on death row has standing to sue the state for refusing to allow access to DNA testing without proof that the defendant would not have been convicted if the DNA testing proved exculpatory.
Regardless of how limited or sweeping the potential impacts, though, each case is important, as the outcomes have the potential not only to move the relevant law forward, but to serve as a signal to litigants regarding how open the court is to confronting criminal justice issues, and how committed the court is to achieving greater consistency across the federal circuits in these kinds of cases.
The level of agreement among the justices has proven important because it appears to be correlated with which party benefits from the outcome of the case. Among the cases related to criminal justice issues decided on the merits in the three preceding terms, the outcomes were roughly evenly split between decisions that favor the government and decisions that favor a criminal defendant or civil claimant.
However, in cases where the justices were in greater alignment —unanimous decisions or 8-1 decisions — the outcomes were generally more favorable to criminal defendants or civil matter claimants. Conversely, where the justices were less aligned — 7-2, 6-3 or 5-4 decisions — the outcomes were slightly skewed to be more favorable to the government.
Thus, the degree of alignment the justices demonstrate in the remaining cases to be decided is highly anticipated, for good reason.
is a professor from practice at the University of Chicago Law School. She previously served as chief administrator of the Chicago Independent Police Review Authority and Chicago's Civilian Office of Police Accountability, and as an assistant U.S. attorney in the U.S. Attorney's Office for the Northern District of Illinois.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Reviewed at oyez.org.
[2] . 602 U.S. 556 (2024) (holding that a malicious prosecution claim under the Fourth Amendment may be brought even where one of the underlying charges is supported by probable cause).
[3] Torres v. Madrid, Lombardo v. City of St. Louis, Caniglia v. Strom, and Lange v. California.