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The death of Justice Ruth Bader Ginsburg in September 2020 and the appointment of Justice Amy Coney Barrett to replace her solidified a 6-3 majority on the Court for Republican appointees and is already affecting how the Court approaches and decides its criminal law and procedure cases. Justice Ginsburg, a strong advocate for equality and fair treatment, generally construed criminal statutes narrowly and stressed the importance of defendants’ procedural rights. Justice Barrett is an originalist who will look to history to seek answers on the scope of criminal procedure amendments. The combined appointments of Justice Gorsuch and Justice Barrett mean that litigants will need to focus more on historical analyses when arguing in front of the Court if they hope to garner a majority. Although that interpretive method will often benefit the government in criminal cases, Justice Barrett—much like Justice Scalia for whom she clerked—will be a staunch advocate of Fourth Amendment protection in the home, as her votes in Caniglia v. Strom and Lange v. California this Term reflect. And she will focus on the text and structure when interpreting criminal statutes, as she did in Van Buren v. United States—the only criminal case that she authored this Term in which she interpreted the Computer Fraud and Abuse Act of 1986 in a way that limited criminal liability. In the Eighth Amendment context, Justice Ginsburg voted with the 5-4 majorities in Roper v. Simmons and Miller v. Alabama to restrict the availability of capital punishment and life without parole for juveniles, and she joined Justice Breyer’s dissent in Glossip v. Gross when he argued for the unconstitutionality of the death penalty. Justice Barrett, on the other hand, joined the majority in Jones v. Mississippi this Term to scale back Miller’s protections for children and voted with the majority in multiple per curiam cases this Term that reversed habeas grants of relief in death penalty cases. In addition to the change in Court personnel, this year has also been marked by controversy about the Court’s procedures. The Supreme Court typically grants certiorari, receives full briefing, has oral arguments, and delivers signed opinions in 60- 70 cases as part of its merits review process. The Court also decides cases as part of its “shadow docket,” where there is not full briefing and the decisions are issued summarily, often through brief, unsigned orders that have little explanation and leave lower courts in the dark about how to apply precedent going forward. Although the shadow docket has always existed, there has been a serious uptick in the extent to which the justices are using it to issue significant decisions without the daylight that comes with the traditional merits review process. The Court has been particularly active in using the shadow docket in capital cases and has also used it this year to send signals to lower courts about qualified immunity and excessive force doctrine.


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