Document Type

Article

Publication Date

2024

Abstract

In its 2023-2024 Term, the Supreme Court outlined the contours of when a former President of the United States would be immune from criminal prosecution; issued important decisions interpreting the scope of the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, the Confrontation Clause, and the Second Amendment right to bear arms; decided a number of important statutory interpretation cases; and continued to avoid Fourth Amendment issues, only addressing them in the context of a malicious prosecution charge. Perhaps more striking than the Court’s decisions in these cases, though, was the Justices’ lack of consensus. Of the 16 criminal law and procedure cases summarized below, only two were unanimous decisions, and only two more had just one majority opinion and one dissenting opinion. Twelve of the 16 cases fractured the Court along multiple dimensions, with almost a third of the cases (5 of 16) involving four or more different opinions.

Interestingly, there were 21 solo-authored opinions in these 16 cases, many of which raised questions about the legitimacy of longstanding doctrines and precedents. In City of Grants Pass, Oregon v. Johnson, for example, Justice Thomas urged the Court to overturn Robinson v. California, which held that criminal laws that punish a person’s status rather than their conduct violate the Eighth Amendment. In Smith v. Arizona, Justices Thomas and Gorsuch encouraged the Court to revisit the “primary purpose” test for determining whether a statement is testimonial for purposes of the Confrontation Clause. And in Erlinger v. United States, Justice Jackson expressed her belief that Apprendi v. New Jersey was wrongly decided, advocating for greater sentencing power to be returned to judges. While it remains to be seen if any of these suggestions are ever adopted by the Court’s majority, it is clear that the Justices are fractured along more than just ideological lines, and they are not afraid to write separately to express their different views.

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