Any recommendations for Amendments needing SCOTUS attention on this Constitution Day?
In this post on this day 15 years ago, I used the occasion of Constitution Day to encourage discussion of parts or provisions of the Constitution that seem under-appreciated. That post and its comments were amusing to review for various reasons, and I figured today might call for a variation on that theme. Specifically, with the Supreme Court’s new Term just a few weeks away, I wonder if anyone might be eager to flag some Amendments that they wish SCOTUS would give some more attention.
As I have noted before, in recent X/Twitter postings, Orin Kerr has bemused and on-going hand-wringing about the fact that the Supreme Court has now completed “three straight Terms of deciding no Fourth Amendment cases.” To make him happy and for other good reasons, I would certainly like to see SCOTUS get back to giving attention to various aspects of the Fourth Amendment’s application in our modern digital age. And, of course, regular readers know that the Fifth and Sixth Amendment issues implicated by acquitted conduct sentencing are matters that I consider long overdue for more Supreme Court attention. The Eighth Amendment got some attention in the Grants Pass case last Term, but in a quirky setting, and I can never get enough of the Justices’ explanation of the limits of the Cruel and Unusual Punishments Clause.
In a post here a few months ago, I noted Kent Scheidegger’s insightful lament about the “high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket.” In that post, I set out my theory that some of the conservative current Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket. The quick “evolution” from Bruen to Rahimi, as well as the continued churn in lower courts over the new originalist turn in Second Amendment jurisprudence, is a clear indication that forging new originalist jurisprudence in the criminal law arena creates considerable uncertainty (and fuels all sort of new litigation by convicted persons). That also proved the (still on-going) story surrounding the originalist Sixth Amendment turns from Crawford and Blakely two decades ago.
With the long conference just weeks away, I hope there are all sorts of juicy constitutional criminal cases in the works for the coming SCOTUS Term. Especially for a law professor, it is always “good for business” when various constitutional amendments get some more attention. But perhaps folks might have thoughts in the comments about where they would like to see the Justices’ focus more time and attention.
A couple older and newer prior related posts: