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A Hindered Court Will Tweak Criminal Law

It has been 29 years since the U.S. Supreme Court last started a term with only eight justices. Next week, another eight-member Court will begin to sort through the scores of cases the justices have chosen to try to resolve.

September 28, 2016

It has been 29 years since the U.S. Supreme Court last started a term with only eight justices. Lewis Powell had resigned from the Court in June 1987 and, as everyone surely remembers, the contentious Senate hearing of Robert Bork that summer did not produce a confirmation. It wasn’t until February 1988 that the Senate confirmed Powell’s successor, Anthony Kennedy, who was President Ronald Reagan’s third choice for the job (Douglas Ginsburg was nominated, but quickly withdrew, after admitting he had smoked marijuana, a reminder of how far we’ve come on that issue in a generation).

Next week, another eight-member Court will begin to sort through the scores of cases the justices have chosen to try to resolve. This time, there is no ugly confirmation hearing to look back upon and none to look forward to, either. For President Barack Obama’s nominee Merrick Garland, for the sitting justices, and for most of the rest of us, there is only limbo, and empty speeches by politicians justifying their inaction, and the sad understanding that a short-staffed Court is unable to fulfill all of the functions it is intended to fulfill.

The justices were careful this summer not to publicly vent what surely must be frustration at the Senate’s unwillingness to restore the Court to its full complement. But that silence is unlikely to last forever. At some point in the process, perhaps if Hillary Clinton wins the presidency and the Senate still refuses to give Garland a hearing, we will hear from Chief Justice John Roberts some diplomatically worded entreaty that says to the legislative branch: “Your inaction jeopardizes the independence of the federal judiciary.”

But that’s down the road. For now, there are arguments to hear and cases to decide and it surely is no coincidence that the Court has on its early docket a handful of criminal law cases that will help shape the contours of the roiling national debate over criminal justice. Alas, the constitutionality of stop-and-frisk is not on the docket. Nor is the constitutionality of solitary confinement. And neither are questions about the scope of immunity or liability that ought to apply when police officers shoot unarmed civilians in broad daylight in the middle of a street.

But there is on the docket in October the Duane Buck case, out of Texas, which presents the Court with the opportunity to right a terrible wrong. Buck’s equal protection rights have been violated not once but twice, first in his trial and then later by Texas politicians who refused to rectify an error they themselves had acknowledged. The Supreme Court also will hear a double jeopardy case likely to remind all of us no matter how the justices rule that this constitutional protection is far narrower than we think.

On the first Wednesday in October, the Court will hear a Fourth Amendment case that likely will give more contour to the temporal dimensions of a “seizure.” When does a “seizure” under the Fourth Amendment end? Most lower courts say a person seized by the police stays so “seized” through the pre-trial process. Go ahead and read through the briefs in Elijah Manuel’s case against the city of Joliet, Illinois, and see for yourself its relevance to the national debate over police and prosecutorial misconduct.

Later in the term, in another case out of Texas, the justices will return to the issue of intellectually-disabled capital defendants. Although the Court ruled in Atkins v. Virginia that murderers who are mentally disabled may not be executed, states like Texas essentially have ignored the mandate, using (in Texas’s case) outdated cognitive tests that somehow always seem to justify the imposition of capital punishment. Fearless prediction: This case, at least, won’t end in a 4–4 tie and Justice Kennedy, in the majority in Atkins, will write the decision.

It’s true that the vast majority of criminal law gets defined and refined at the state supreme court level. But it also is true that the U.S. Supreme Court, ultimately, sets benchmarks that all trial judges, and prosecutors, and police officers must meet. The high court often gets the credit for rulings that rein in law enforcement excesses (as rare as those decisions seem to be). But the justices rarely get the blame for the standards now used to either justify or defend police or prosecutorial misconduct.

Some analysts have concluded that Merrick Garland would be a more reliable vote for law enforcement than Antonin Scalia ever was. Maybe yes, maybe no. Don’t forget that this is a Court that has staunchly endorsed and defended some of the worst excesses of policy and practice in the nation’s march toward mass incarceration over the past 40 years. It has routinely excused prosecutorial and police misconduct. It has made it measurably more difficult, not easier, for civilians to seek redress in court when they’ve been wronged by the criminal justice system. Whether it’s Scalia or Garland, and whether it comes this term or next, if criminal justice reform is going to succeed in the long term it must come from both the ground up and the top down.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.