Criminal justice and the 2014-2015 United States Supreme Court term.

AuthorMcCall, Michael A.

    For many, the 2014-2015 Term of the United States Supreme Court will be all but synonymous with the Court's holding in Obergefell v. Hodges (1) for years to come. With that landmark decision, the Court extended constitutional protections to an untold number of same-sex couples, (2) renewed debate regarding states' rights in our system of federalism, (3) highlighted the judicial branch's dependence on local officials to implement decisions, (4) and even sparked a proposal to radically alter the judiciary to make it more sensitive to democratic pressures. (5) The Court garnered additional public attention when it ruled on other issues enmeshed in cultural debates. (6)

    Discussions regarding these and other decisions largely have overshadowed consideration given to the Court's recent rulings on criminal justice issues. In this Article we seek to remedy this by focusing on Supreme Court decisions in criminal justice cases during the 2014-2015 Term. Criminal justice cases warrant such attention not only because they have long comprised a significant portion of the Court's caseload, (7) but also because the Court's decisions in these matters can profoundly affect the practices of police and other system officials, (8) as well as the lives of suspects, defendants, and convicted offenders. (9) During the 2014-2015 Term in particular, the Court considered several important criminal justice issues (10) including threats made via social media, (11) lethal injection and the death penalty, (12) and religious rights of prisoners. (13) Moreover, high-profile events routinely generate public interest in criminal justice topics such as prison and sentencing reform, (14) mass shootings and gun regulation, (15) the decriminalization of marijuana, (16) and the intersection of racial tension and police practices. (17)

    A wide range of related but different questions can be evaluated with a focus on criminal justice cases. Given the number and scope of criminal justice rulings, a careful examination of Court decisions in this subset of cases may illuminate broader patterns on the Court and enhance our understanding of the forces that more generally affect Justices. (18)

    One such broader pattern explored in this study of criminal justice decisions concerns the perceived ideological slant and direction of the Court. Most accounts group Chief Justice Roberts and Justices Alito, Thomas, Scalia, and Kennedy into the conservative wing of the Court and group Justices Ginsburg, Breyer, Sotomayor, and Kagan into the liberal wing. (19) Perhaps because of this conservative majority, several observers have claimed that the Roberts Court shifted rightward in recent years. (20)

    To some, however, the 2014-2015 Term overall seemed different in that the Court produced a number of liberal decisions on a variety of issues. For example, a legal affairs correspondent covering the Supreme Court for National Public Radio remarked:

    It was a historic term, a surprisingly liberal term--and a nasty term.... Astonishingly--though the court is dominated by conservative justices--the liberal minority ... drove the direction in a startling number of cases.... The liberals won in 19 of the 26 closely-divided ideological cases and eight out of 10 of the most important ones. (21) To ascertain whether and in what ways the Court may have "turned hard to the left" (22) and for other analyses in this article, we adopt the labels "conservative" and "liberal" in examining criminal justice decisions. Specifically, we code as conservative those positions favoring government as it seeks to deter, investigate, and punish criminal behavior. Conversely, liberal positions support individual claims made by the criminally accused or convicted. These definitions are common among related journalistic (23) and scholarly accounts, (24) and follow those articulated in the widely used Supreme Court Database. (25) We independently coded all individual votes and outcomes in cases raising significant criminal justice questions. (26) Traditional quantitative metrics assess and categorize Court decisions and individual Justice's voting behaviors in the following section, (27) while Section III contains a review of the cases to provide context and details regarding the questions contemplated by the Court and identifies new developments in law produced by the Court's decisions. (28)

    The close of the 2014-2015 Term marked a decade of the Court under Chief Justice Roberts's leadership. The analyses of criminal justice decisions from this Term may identify patterns of decision making among Justices that provide perspective on individual judicial philosophies and help predict future trends and potential new directions on the Court.


    The 2014-2015 Term was the second consecutive year in which the Supreme Court handed down fewer full, signed decisions (29) on criminal justice issues--twenty (30)--than in any of the previous Terms of the Roberts Court era. (31) Despite this decline, criminal justice decisions represented a major portion of the Court's production (32) as the overall Court docket remained small by historical standards. (33)

    Table 1 summarizes the Supreme Court's criminal justice decisions from the 2014-2015 Term according to the direction of the Court's ruling and the extent of disagreement among the Justices. (34) Decisions in nearly two of every three cases during the 2014-2015 Term favored the individual accused or convicted. The opposite pattern occurred during the 2013-2014 and 2010-2011 Terms when conservative criminal justice decisions outnumbered liberal ones by at least a two-to-one margin. (35) Indeed, the predominance of liberal decisions during the 2014-2015 Term contrasts sharply with the distribution of outcomes in criminal justice cases from the first several years of the Roberts Court. (36) Although this first set of results is too cursory to substantiate the claim of a shift by the Court to a more liberal posture, (37) the case distribution does not refute that possibility either.

    On the other hand, the data suggest a return to a more typical practice of deciding about 30 percent of criminal justice cases without dissent. (38) The previous 2013-2014 Term "witnessed the highest portion of criminal justice cases decided unanimously during the Roberts Court era to date," (39) and an unusual degree of consensus existed across a range of other issue areas that year. (40) This may have led some to predict an enduring trend of increased agreement among the Justices that would be in line with Chief Justice Roberts's expressed goal of forging greater consensus on the bench. (41) However, the findings presented in Table 1 caution that, at this point, the frequency of consensus in criminal justice cases during the 2013-2014 Term may be best thought of as an anomaly. Just as the number of liberal decisions in a given year may not indicate the general, future direction of Court interpretations, the complex interaction of multiple factors affecting the prevalence of unanimity on the Court (42) may not be revealed in a single Term.

    Table 2 presents individual Justices' voting records for criminal justice cases decided during the 2014-2015 Term. (45) As shown, Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy were far more likely to support the interests of law enforcement than were their other colleagues; the clustering comports with the common portrayal of the Court having a conservative and a liberal wing. (46) The apparent philosophical gap between the two groups of Justices concerning criminal justice cases becomes accentuated when attention is focused on non-unanimous decisions. Presumably, votes cast by Justices are most likely to reflect their truest, preferred position in such divided cases in that there is no pressure to accommodate or compromise for the sake of unanimity. (47) Justices Kagan, Ginsburg, Sotomayor and Breyer each supported a conservative outcome in no more than two of these fourteen, non-unanimous criminal justice cases. Conversely, Chief Justice Roberts and Justices Kennedy, Scalia, Alito and Thomas each voted for a conservative outcome at least seven (and as many as thirteen) times in these cases.

    For the third consecutive year, no Justice supported claims of the criminally accused more often than did Justice Sotomayor. (50) While some may have expected that her experience as a prosecutor would make her more sensitive to law enforcement interests, (51) Justice Sotomayor has become a rather dependable liberal vote in criminal justice cases on the Roberts Court. (52)

    Given the unusually large percentage of criminal justice cases decided in a liberal direction during the 2014-2015 Term, (53) it is not surprising that those Justices commonly characterized as more conservative (Chief Justice Roberts and Justices Scalia, Alito, Thomas, and Kennedy) were part of fewer majorities than in other recent years. (54) Justice Thomas--the most likely to cast a dissenting vote in a criminal justice case this Term--also posted the most conservative voting record. (55) Justice Thomas dissented from all liberal, non-unanimous decisions except the eight-to-one decision in Johnson v. United States. (56) Even then, Justice Thomas chastised the liberal majority in his lengthy concurring opinion for overreaching; he asserted that the case should have been decided based on statutory rather than constitutional interpretation. (57)

    Other findings related to Table 2 also suggest a potentially wide, liberal-conservative divide on the Court in criminal justice cases. For example, only one dissenting vote was cast by a member of the liberal wing in a criminal justice case ending in a liberal outcome this Term. (58) Similarly, only a single dissenting vote was cast by a member of the conservative wing when the Court favored law enforcement interests this Term. (59)

    Moreover, the...

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