Recent Legal Developments: Criminal Justice Decisions of the United States Supreme Court, 2021 Term

• Author: Craig Hemmens,Arifa Raza,Hillary Mellinger
• DOI: http://doi.org/10.1177/07340168221131800
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Articles

Recent Legal Developments:

Criminal Justice Decisions of

the United States Supreme

Court, 2021 Term

Craig Hemmens , Arifa Raza,

and Hillary Mellinger

Abstract

In this paper, we review and analyze the criminal justice-related decisions of the 2021 term of the

United States Supreme Court. We also provide a summary of the Court’s voting patterns and opin-

ion authorship. 18 of the Court’s 58 decisions touched on criminal justice. There were signif‌icant

decisions involving the Second Amendment, the Eighth Amendment, and federal criminal statutes.

Each of these is discussed in turn.

Keywords

courts/law, legal issues < courts/law, court< courts/law

Introduction

During its 2021 term, the United State Supreme Court issued a total of 63 decisions, including 58

signed opinions and 5 per curiam decisions, as well as 1 case that ended in a 4-4 tie and aff‌irmance

of the lower court, and 2 cases that were dismissed as improvidently granted. Of the 58 signed merits

opinions issued, 18 (31%) dealt primarily with a criminal justice-related issue. A number of these

decisions addressed controversial issues, including the Second Amendment and Eighth

Amendment. Others dealt with less newsworthy but nonetheless important issues, including the inter-

pretation of federal statutes.

An examination of all the Court’s decisions reveals some interesting patterns. Only 29% (18 of

63) of the Court’s decisions were unanimous, the lowest percentage of the Roberts Court. Sixteen

decisions (25%) had either 8-1 or 7-2 majorities. Nineteen cases (30%) were decided by a 6-3

margin while just 10 cases (16%) 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 were taken from

the United States Courts of Appeal. The Ninth Circuit had the most cases reviewed (11) and was

Department of Criminal Justice and Criminology, Washington State University, Pullman, WA, USA

Corresponding Author:

Craig Hemmens, Department of Criminal Justice and Criminology,Washington State University, 717 Johnson Tower, Pullman,

WA 99164, USA.

Email: craig.hemmens@wsu.edu

Article

Criminal Justice Review

2023, Vol. 48(1) 106-127

© 2022 Georgia State University

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/07340168221131800

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reversed in each case—as the Ninth Circuit is both the largest Court of Appeals and the most liberal,

neither of these results is particularly surprising. The Supreme Court heard 4 appeals from state

courts and reversed the state court in each of those appeals.

The addition of three justices during the Trump administration has dramatically altered the ideo-

logical makeup of the Court. Where in past years the Court was frequently split 5-4 with a swing

justice (Justice O’Connor and later Justice Kennedy) often determining the outcome of high-prof‌ile

cases, there is now a clear conservative majority.

Chief Justice Roberts and Justice Kavanaugh were most frequently (95%) in the majority. Each of

the six Justices in the conservative wing of the Court were in the majority at least 75% of the time.

Justice Sotomayor, perhaps the most liberal justice, was in the majority only 58% of the time (and in

only 41% of non-unanimous decisions). Chief Justice Roberts and Justice Kavanaugh were in agree-

ment in 100% of the decisions, while Justices Thomas and Alito were in agreement in 90% of the

decisions. On the other side of the ideological spectrum, Justices Kagan and Sotomayor were in

agreement in 90% of the decisions.

As for opinion writing, majority opinion authorship was divided quite evenly. Chief Justice

Roberts wrote the most majority opinions (8), while Justice Kavanaugh wrote the fewest (5). This

even distribution of majority opinions has been a hallmark of the Roberts Court and speaks to the

Chief Justice’s management skills. Justice Sotomayor was the most prolif‌ic opinion writer, with a

total of 24, including 6 majority opinions, 5 concurring opinions, and 13 dissenting opinions. The

Justice with the second most total opinions was the one on the opposite end of the ideological spec-

trum, Justice Thomas, with 23 (7 majority opinions, 8 concurring opinions, and 8 dissenting opin-

ions). For the f‌irst time in her ten years on the Court Justice Kagan did not produce the fewest

total opinions. Chief Justice Roberts (11) and the newest member of the Court, Justice Barrett

(12), wrote the fewest number of opinions. Three justices (Thomas, Gorsuch, and Alito) each

wrote 3 solo dissents, while Justice Breyer wrote 1 and 5 justices wrote none.

We present below a summary and analysis of the most signif‌icant decisions involving criminal

justice. There were eighteen criminal justice-related decisions, including two decisions involving

consolidated cases. The cases are divided, somewhat roughly, into categories.

Second Amendment

New York State Rif‌le & Pistol Association, Inc. v. Bruen. Brandon Koch and Robert Nash, both law-

abiding New York residents, applied for unrestricted licenses to carry a concealed handgun in

public for self-defense. New York denied their applications on the basis that state law required indi-

viduals to prove they had “proper cause”for carrying concealed handguns, and in the state’s view,

neither Koch nor Nash met this requirement. According to state law, to prove proper cause, an indi-

vidual must “demonstrate a special need for self-protection distinguishable from that of the general

community.”Koch and Nash sued the state off‌icials responsible for processing f‌irearm licensing

applications and alleged that their Second Amendment rights had been violated. The District

Court dismissed their complaint and the Second Circuit Court of Appeals aff‌irmed. Both courts

based their decisions on a prior Second Circuit case which upheld New York’s proper-cause require-

ment on the basis that it was substantially related to the achievement of an important governmental

interest.

In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice

Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Court held that New York’s

proper-cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens

from exercising their Second Amendment right to keep and bear arms for ordinary self-defense.

In addition, the Court stated that both District of Columbia v. Heller (2008) and McDonald

v. Chicago (2010) upheld an individual’s right to keep and carry arms for self-defense purposes.

Hemmens et al. 107