Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases

In this post over at Crime & Consequences noting the Supreme Court’s latest criminal statutory case cert grant (flgged here), Kent Scheidegger closes with this notable lament:  

The high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket is frustrating.  With a solid majority finally in place who are dedicated to the real Constitution that the people actually adopted, there are large piles of pseudo-constitutional barriers to justice that could be corrected.  Yet the majority doesn’t seem to be much interested.

A variation of this frustration often echoes in Orin Kerr’s (bemused?) hand-wringing about the fact that the Supreme Court is completing “three straight Terms of deciding no Fourth Amendment cases.”  And I certainly have been heard to express disappointment about the Justices’ failure to take up consitutional questions related to acquitted conduct and other suspect sentencing practices.  

Because the current Court may not experience changes in membership for at least a few more years, there is every reason to expect its recent cert granting (and cert denial) tendencies will continue for some time.  So Kent and Orin and I and others interested in constitutional criminal procedure cases should probably expect our collective frustrations to continue.  But just why has this historically large part of the Supreme Court’s docket in recent years experienced such shrinkage? 

Kent’s reference to “the real Constitution,” as well as cases still pending before the Justices this Term and the interesting First Amendment case in Vidal v. Elster last week, prompts me to muse with some originalist (though not likley original) thoughts on this front.  As the Vidal case highlights, even Justices who embrace originalist approaches to interpreting the Constitution can reach different conclusions in hard cases.  To borrow a notable passage from Justice Barrett’s opinion, there are various “judge-made tests” used by avowed originalists, and the current Justcies may be unqiuely worried that in constitutional criminal procedure cases different Justices may reach different results due to which “judge-made tests” they adopt and how they apply that test. 

A variation of this story defines modern Second Amendment jurisprudence, especially since the Justices in Bruen made up a new originalist test for assessing the constitutionality of gun restrictions.  For two years, we have seen considerable uncertainty and variation in judicial determinations about an array of federal and state gun prohibitions, and the Justices were urged by the US Solicitor General to clean up some of the constitutional messiness via the Rahimi case.   That we still await a ruling in Rahimi suggests the Court is not finding it easy to clarify its originalist Second Amendment.  Meanwhile, at least a half-dozen other federal gun prohibitions are confounding lower courts (with more in the states), all of which the Rahimi ruling seems unlikley to conclusively resolve. 

Why am I not expecting Rahimi to conclusively clarify originalist Second Amendment jurisprudence?  Because two other cases still on the current SCOTUS docket, Smith v. Arizona (dealing with the Confrontation Clause) and Erlinger v. US (dealing with the Jury Trial right), are the continuing echoes of game-changing originalist constitutional criminal procedure rulings from 20 years ago.  In the same Term, Justice Scalia brought originalism to new prominence via Crawford and Blakely, and I am not the only academic who has made a career trying to sort through the proper way to apply an originalist Sixth Amendment to all the intricacied of modern criminal justice decision-making.  That Sixth Amendment jurisprudence has been messy and confusing since Crawford and Blakely does not mean these cases were wrongly decided or misguided (indeed, my love and admiration for the Blakely ruling endures).  But, while none of the current Justices save Justice Thomas were even on the Court when Crawford and Blakely were decided, they have surely taken note of the steady stream of cert petitions highlighting the challenges of applying an originalist jurisprudence in these spaces.

I could go on and on by noting, for example, the ambivalence of many Justices to how Justice Scalia in Jones and Justice Gorsuch in Carpenter seemed inclined to “originalize” Fourth Amendment jurisprudence.  Also notable, but still unclear, is whether the pending Grants Pass case might lead the current Court to take an originalist Eighth Amendment turn.  The oral argument did not really hint at that possibility, but one never knows. 

Against that backdrop, I will speculated that those Justices who may be most consistently interested in originalist approaches to the Constitution are also the ones who realize how truly hard and contestable originalist doctrines can prove to be, especially for criminal procedure issues in which there is a lot of text, and a lot of history, and a lot of tradition to sort through and (re)interpret.  And the whole Court surely realizes that once its jurisprudence takes a robust originalist turn (see, eg, Blakely, Bruen, Crawford and surely others), it is alwfully hard to turn back.  And, again with recent experiences in mind, an originalist turn in this arena often will entail that criminal defendant of all sorts start looking to make new arguments of all sort that the originalist turn can and should mean even more rights and protections than existing doctrines provide.

Of course, as we get new SCOTUS rulings this week and next, my thinking about originalism and constitutional criminal procedure and the SCOTUS docket may change.  But for now, I fear that Kent and Orin and others may need to be content with a whole bunch of statutory cases and immunity claims.