{"id":387,"date":"2026-07-15T13:39:41","date_gmt":"2026-07-15T13:39:41","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=387"},"modified":"2026-07-15T13:39:41","modified_gmt":"2026-07-15T13:39:41","slug":"the-courts-criminal-law-term-overview-and-observations","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=387","title":{"rendered":"The court\u2019s criminal law term: overview and observations"},"content":{"rendered":"
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Approximately two weeks after of the 57 argued cases decided by the Supreme Court in the October 2025-26 Term was filed, this column presents an overview of the \u201cpure\u201d criminal law decisions the court issued. By my characterization, there were 16 (or 17) \u201cpure\u201d criminal law cases decided after full briefing and argument since last October. This number (16) represents 28% of the court\u2019s total 57 argued cases. (If you count a civil case finding standing to challenge a state attorney general\u2019s investigative subpoena, as \u201cpure,\u201d then it\u2019s 17 pure criminal cases, almost 30%.) Thus, the first point is that although the court itself does not differentiate, criminal law represented a substantial part of the Supreme Court\u2019s merits work this term.<\/p>\n

Read more Carroll Receives Payment from Trump<\/a><\/p>\n

My list of the 16 or 17 \u201cpure\u201d criminal law decisions is at the end of this column. I suggest you scroll down to examine it now. Below, I also provide a brief description of some of the \u201cbig\u201d cases, and some overall observations. No other source, not even the court, tracks all the criminal law work of the Supreme Court like I do. So even though the court does more criminal law work than just these \u201cpure\u201d cases, identifying and compiling this list, and then considering them all, takes significant time and analysis.<\/p>\n

As always, for a full understanding you should read the official opinions in their entirety. My Annual Review of the Supreme Court\u2019s Term: Criminal Cases also details the entirety of this SCOTUS criminal law universe, and it is usually published by the Criminal Justice Section of the ABA in August. Expect a more comprehensive column, or two, from me then.<\/p>\n

Another term favoring criminal defense positions<\/strong><\/p>\n

A specific point of interest to some observers is that of the 16 \u201cpure\u201d criminal law decisions, 11 produced results in favor of a criminal defendant or a criminal defense position. That is, roughly two-thirds of the pure criminal law cases decided by the court after full briefing and argument favored either the criminal defendant or defense view. Some critics of the court may find this pro-defendant pattern surprising \u2013 but it is duplicative of the results I reported last term (10 of 14 pro-defendant results). Below, I briefly consider why this might be so. And I observe that some pro-defendant decisions were not always for results that a politically \u201cliberal\u201d ideology might favor (for example, two decisions favoring gun possession rights). Do court observers need to shift their labels or definitions?<\/p>\n

It\u2019s also important to note that while 16 pure criminal law cases is a substantial part (about one-third) of the court\u2019s merits opinions, the court considers criminal law issues in many other parts of its docket. For example, another 11 cases were decided summarily, \u201cper curiam,\u201d without full briefing or argument. Another 20 or so cases are what I\u2019d call \u201crelated\u201d to criminal law, but not purely focused on criminal matters \u2013 for example, five full decisions on immigration topics. Other criminal law issues can appear on the interim or \u201cshadow\u201d docket, and still other writings by justices appear as \u201cOpinions Relating to Orders\u201d on the court\u2019s website. Finally, the court has already granted review in 24 cases next term (starting in October), and I count nine of those (over a third) as criminal. While today\u2019s column considers perhaps the most important portion of the court\u2019s work \u2013 cases decided after full briefing and oral argument \u2013 it is therefore still only part of the iceberg.<\/p>\n

There were some \u201cbig\u201d (important) criminal law cases<\/strong><\/p>\n

At last week\u2019s live SCOTUSblog event, panelists discussed why identifying \u201cbig\u201d Supreme Court cases is controversial. And presenting a few of these here is not to deny the importance of the other individual criminal law cases (take, for example, Abouammo v. United States<\/em>, an important decision explaining constitutional limits on where the government can file criminal charges). But here are some which I thought were of particular significance.<\/p>\n

Guilty pleas<\/em>: Hunter v. United States<\/em>. Last month I explained why I think Hunter<\/em> is a \u201csleeper\u201d decision, which a few years from now may be viewed as the most important criminal case of this term. On the relatively narrow , eight justices agreed that even when a defendant has waived any appeal after a guilty plea is entered, that waiver need not be enforced \u2013 that is, a court can still consider an appeal \u2013 when a \u201cmiscarriage of justice\u201d would otherwise result. Justice Elena Kagan\u2019s majority opinion was carefully crafted to not say too much, and thereby successfully capture justices from all points of view. But a three-justice concurring opinion by Justice Neil Gorsuch could, if accepted by a future majority, have huge implications for many areas of criminal law. Gorsuch questions the constitutional validity of the entire plea bargain structure currently dominant in this country, governing over hundreds of thousands, or around 90%, of criminal dispositions. He questions the fundamental legitimacy of what \u201cvoluntary\u201d means for waivers of constitutional rights that undergird many aspects of criminal procedure (for example, consent searches under the Fourth Amendment). I think Justice Brett Kavanaugh saw the implications: he filed a brief counter-concurrence (joined by Justices Samuel Alito and Amy Coney Barrett) to tersely note that he \u201crespectfully disagree[d]\u201d with Gorsuch. Keep your eyes open for future lower court applications of Kagan\u2019s and Gorsuch\u2019s opinions in Hunter<\/em>.<\/p>\n

Fourth Amendment decisions<\/em>: Chatrie v. United States<\/em> (and Case v. Montana<\/em>). Kagan assembled a six-justice majority to hold in Chatrie<\/em> that governmental-compelled obtainment of a person\u2019s cellphone location data from their carrier is a \u201csearch\u201d triggering application of the Fourth Amendment. Here also Gorsuch wrote a concurrence questioning the doctrinal foundations of modern Fourth Amendment law. Exactly how such \u201cgeofence\u201d searches should be conducted was remanded to the lower courts. This ruling produced a huge sigh of relief for many; a ruling the other way would have endorsed widespread warrantless government surveillance.<\/p>\n

Death penalty decisions:<\/em> Pitchford v. Cain<\/em> and Hamm v. Smith<\/em>. The court vacated one death penalty judgment in Pitchford<\/em> and affirmed by default the vacatur of a death penalty in Hamm<\/em>. Kavanaugh\u2019s opinion for five justices in Pitchford<\/em> holds that a defendant must be given a fair opportunity for a rebuttal when a prosecutor has asserted seemingly race-neutral reasons for striking black jurors. Interestingly, Kavanaugh had written a law journal note to the same effect while a law student in 1989.<\/p>\n

Meanwhile, after full briefing and oral argument in Hamm<\/em>, the court dismissed the case without opinion or identified author (per curiam) as \u201cimprovidently granted\u201d (a DIG, short for \u201cdismissed as improvidently granted\u201d). The case had had a lengthy and somewhat tortured history; Justice Sonia Sotomayor explained that in detail in a concurrence, and then explained why, after intense examination, it was \u201cinappropriate\u201d to use this case to try to settle the correct method for considering multiple IQ test scores when evaluating death penalty ineligibility under the 2002 decision of Atkins v. Virginia<\/em>. The effect of this DIG appears to leave in place the Alabama that Joseph Clifton Smith \u201cis intellectually disabled and cannot constitutionally be executed.\u201d<\/p>\n

Second Amendment: Wolford v. Lopez<\/em> and United States v. Hemani<\/em>. The court vacated the conviction of a defendant who used illegal drugs for unlawful weapon possession in Hemani<\/em>, and struck down a Hawaii statute banning concealed-carry firearm possession in Wolford<\/em> (the statute banned even licensed possession on privately-owned property open to the public unless the owner had expressly given permission). I say a little more about them below.<\/p>\n

Themes, observations, and trends<\/strong><\/p>\n

My view is that too-fast \u201creview of the court\u2019s term\u201d discussions are often overly dominated by the most recently issued decisions and follow popular media \u201cinstant analysis\u201d channels that are too facile to last. (Again, last week\u2019s live SCOTUSblog event discussed this idea.) They miss cases, themes, and trends that later become apparent. Today\u2019s review is still in the \u201cmagazine\u201d category; I may revisit or revise some of these ideas. For now, scroll down and review the list of \u201cpure\u201d criminal law decisions. Then you might consider these observations:<\/p>\n