Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2017 Term

Published date01 June 2019
Date01 June 2019
Subject MatterArticles
Recent Legal Developments:
Criminal Justice Decisions
of the U.S. Supreme Court,
2017 Term
Craig Hemmens
and Briana Gieri
During its 2017 term, the U.S. Supreme Court issued a total of 71 decisions on the merits, including
59 signed opinions, 11 summary reversals, and one per curiam opinion. Of the 59 signed merits
opinions issued, 22 (37%) dealt primarily with a criminal justice–related issue. A number of these
decisions dealt with important, if not particularly newsworthy, issues such as habeas corpus and the
interpretation of federal statutes. A few, however, dealt with important and controversial issues,
including police liability and the death penalty. The most memorable event of the term, however,
was undoubtedly Justice Kennedy’s announcement at the end of the term of his retirement.
An examination of all of the Court’s decisions reveals some interesting patterns. Thirty-nine
percent (28 of 71) of the Court’s decisions were unanimous, while 17 decisions had either 8-1 or 7-2
majorities. Sixty-two percent (45 of 71) of the decisions were decided by a vote of at least 7-2. Only
seven cases were decided by a 6-3 margin, while 19 cases (26%) were decided by a 5-4 margin. The
makeup of cases accepted and decided by the Court was in line with past years. The vast majority of
cases (79%) were taken from the U.S. Courts of Appeal. The Ninth Circuit had the most cases
reviewed (15) and was reversed 12 times.
Chief Justice Roberts and Justice Kennedy were most frequently in the majority; both were in the
majority in more than 90%of all decisions. Justice Sotomayor was the Justice least often (68%)in
the majority. Justice Gorsuch (five opinions) and Alito (four opinions) authored the most majority
opinions in 5-4 decisions. This was a departure from recent years, when Justice Kennedy, often seen
as the swing vote, authored the most majority opinions in 5-4 decisions. Chief Justice Roberts was in
the majority in seventeen of the nineteen 5-4 decisions. A clear liberal/conservative split was
revealed by the membership in the majority in 5-4 decisions. The so-called liberal wing of the
Court, Justices Ginsburg (5 times), Breyer (4), Sotomayor (4), and Kagan (3) were rarely in the
majority in 5-4 decisions.
As for opinion writing, majority opinion authorship was divided quite evenly, with every justice
writing either 6 or 7. This even distribution of opinions has been a hallmark of the Roberts Court and
speaks to the Chief Justice’s strong management skills. As in years past, Justice Thomas was the
most prolific opinion writer, with the most opinions overall (31), including 7 majority opinions, 16
Washington State University, Pullman, WA, USA
Corresponding Author:
Craig Hemmens, Washington State University, 717 Johnson Tower, Pullman, WA 99163, USA.
Criminal Justice Review
2019, Vol. 44(2) 231-243
ª2019 Georgia State University
Article reuse guidelines:
DOI: 10.1177/0734016819835913

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