While most news outlets focus on whether Judge Brett Kavanaugh will be confirmed as an Associate Justice on the Supreme Court, the Court has quietly kicked off a new Term. What criminal law cases does the Court have in store?
It’s important to remember that the Court will accept more cases as the Term progresses. But for now, the principal criminal law cases on the docket are as listed below. Links are to SCOTUSblog’s coverage of each case. Quoted language reflects the Questions Presented in each case.
- Gundy v. United States: “Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations . . . violates the nondelegation doctrine.”
- Madison v. Alabama: In part, “Whether, consistent with the Eighth Amendment . . . a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense.”
- Stokeling v. United States: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act . . . when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”
- Garza v. Idaho: “Whether the ‘presumption of prejudice’ recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.”
- Bucklew v. Precythe: A case raising several issues regarding how method-of-execution claims should be evaluated under the Eighth Amendment.
- Gamble v. United States: “Whether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”
- Timbs v. Indiana: “Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.”
The capital cases and the double jeopardy case have the most intellectual interest for me. I’m not sure that I see any of these cases as likely to have a large-scale practical impact in North Carolina, but I stand ready to be corrected on that front.
There are some interesting criminal or criminal-adjacent cases on SCOTUSblog’s “Petitions We’re Watching” list, including a case addressing whether frequent reporting requirements may render sex offender registration punishment; a case asking whether inmates may be placed in solitary confinement without a security justification; and a Confrontation Clause case about forensic reports. Obviously, the Court might or might not take those cases.
Some Court watchers think that the lack of high-profile, controversial cases is a result of the fact that the Court currently has only eight Justices and so could split 4-4. Should Judge Kavanaugh, or someone else, be confirmed before the Court finishes its docket, perhaps things will pick up a bit.