As SCOTUS heads into homestrech, any prediction for any criminal justice “sleeper” opinions?
A relatively boring new order list from the Supreme Court this morning has lead my mind to wandering and wondering about what rulings the Justices will issue this Thursday and in the weeks to come. The Justices still have nearly 30 cases to resolve, which means an average of nearly ten per week over the next three weeks if they hope to wrap up the Term by the end of June. I would guess we should expect, maybe, five rulings this week, then closer to ten next week and then a final big closing batch the last week of June. But that’s a lot to get done in a short period, and maybe the Justices will need a few days into July to wrap it all up.
Whatever the particulars of the fin-de-terme pacing by SCOTUS, we know a whole bunch of major rulings are coming soon on criminal and non-criminal issues. “Major” non-criminal rulings are coming on topics ranging from abortion to federal agency powers to social media moderation to federal tax authority. “Major” criminal rulings are coming in topics ranging from presidential criminal immunity to key Jan 6 charges to Second Amendment and Eighth Amendment limits on criminal statutes. And, of course, there are a number of “minor” cases still pending, and I wanted to flag a few that, depending on how the Justices rule, could certainly turn into “major” cases.
As the title of this post reveals, I think of “minor” cases that turn into “major” cases as “sleepers,” and I would categorize one of my favorite sentencing cases, Blakely v. Washington, as a sleeper. (The Blakely precursor, Apprendi v, New Jersey, likely ought also be considered a sleeper, but the follow-up of US v. Booker certainly was not flying below the radar before it was decided.) And perhaps the Sixth Amendment is a sleeper amendment, as the two cases on my current sleeper list are Sixth Amendment matters (with thanks to SCOTUSblog for links/descrptions):
Issue(s): Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.Issue(s): Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.
There are a number of other lower-profile criminal cases which could prove quite interesting for various reasons, eg, Diaz v. U.S., No. 23-14 and Snyder v. U.S., No. 23-108, but Smith and Erlinger seem to me like the cases getting relatively less attention for which a “big” SCOTUS ruling could end up having a surprisingly big impact.
I am certain my ivory tower realities (and my particular interest in sentencing topics) influences my sleeper list. I’d be eager to hear others’ views in the comments, either about other possible criminal justice sleeper cases or about any of the higher-profie criminal cases (eg, Rahimi, Fischer, Grants Pass, Trump) that they think might produce an opinion that defies expectations.