SCOTUS Monday
The U.S. Supreme Court has issued an orders list from last week’s conference. No new cases were taken up. There are no criminal cases on this week’s oral argument docket.
The Court currently seems to be less interested in criminal law issues than in past years. To some extent, no news is good news. Federal constitutional limitations on state criminal law run only in the defendant’s favor. In addition, changes in the law in the defendant’s favor often have retroactive effect, while changes in the prosecution’s favor rarely do. So lack of change is, at least in part, good for law enforcement.
On the other hand, there are a lot of rules with no real basis in the Constitution that one might think that an originalist-dominated Supreme Court would want to get rid of. One possible explanation is that the Court has a sort of budget for turmoil and has spent it all in other fields for the time being. That could change as the storms from last term’s decisions subside.
CJLF will be making some suggestions along that line in the near future. Stay tuned.
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I assume you are not talking about limiting jury trial right in all sorts of settings or allowing searches based on reasonable suspicion and without warrants. Not meaning to troll (too much) here, but I would be quite eager to see anydetailed accounting of whether clearing out non-originalist doctrines would be more likely to favor the state/law enforcement or individual defendants.
Jury trial? No, not talking about that at all. The Apprendi line and Ramos v. Louisiana have an originalist basis. Originalist decisions can run in favor of the defendant or the prosecution, but as noted in the O.P. retroactivity law is heavily tilted in favor of the defense, especially the Griffith rule for direct review when combined with the reality that only the defense can appeal in most cases.
That is why my “good for law enforcement” comment is hedged with “at least in part.” There are changes we would like to see, and we intend to ask for them. Stay tuned.
Do you have an article/brief/account of the original understanding of retroactivity that you can share now? I would be eager to learn more of the retroactivity history, especially now that it seems originalism is the way we are supposed to do constitutional law.
Originalism is the way we are supposed to interpret provisions of the Constitution. Retroactivity is something of a side issue, not addressed in the Constitution. So I don’t think that “original understanding of retroactivity” is a meaningful exercise.
That said, I believe that all decisions were retroactive in the days when judges at least pretended that they were discovering what the law had always been rather than making new rules of law. Nonretroactivity came in during the Warren Court era to grease the skids for the changes they wanted to make. Making changes prospectively (except for the case in which the change is announced) was “damage control” to reduce resistance.
Justice Black was vehemently against it, if I recall correctly. Justice Harlan eventually came around to oppose nonretroactivity on direct review but distinguish habeas corpus. His opinions in Desist and Mackey would be a good place to start reading. Although alone at the time, his position was ultimately adopted in Griffith and Teague, with some modifications.
Again, not trying to troll, but is there really a blanket exception to originalist analysis if/whenever we decided some concern is just “a side issue”? That’s not my understanding. Maybe originalist analysis is not always to be dispositive, but I think originalists think it must be used to inform our understanding of all matters of constitutional concern.
Moreover, I believe any thoughtful discussion of these issues MUST distinguish between conviction finality concerns and sentence finality concerns where the balancing of interests are categorically different. In an article on this topic, I also did this superficial bit of textualism/originalism: “[T]he Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems.”
Re-Balancing Fitness, Fairness, and Finality for Sentences (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2432092
I have actually been hoping originalisms new predominance would lead to some more informed and historically robust discussions of these important issues, but I am not away of many effort to unpack these stories circa 1789 or 1865.
Thanks for the engagement
Not sure why you are stuck on retroactivity and originalism. In any case, current law is at least as generous to defendants as the practice at the time of the Founding, so there is nothing to be gained there from the defense side. Under Griffith, we have full retroactivity on direct appeal. There is no original understanding regarding retroactivity on habeas corpus when that writ is used to collaterally attack the final judgment of a court of general jurisdiction because that practice simply did not exist. See my brief in Jones v. Hendrix.
I haven’t read your article yet, but I am skeptical that any of the provisions you cite indicate an eagerness on the part of the Framers to provide any greater review and reconsideration of criminal judgments than we have at present. The Suspension Clause, as discussed in my Jones brief, provided no review whatever of felony convictions in federal circuit courts. The Supreme Court’s appellate jurisdiction was and is subject to exceptions by statute. The First Congress, made up largely of the same people who wrote and ratified the Constitution, excepted federal criminal cases from appeals to the Supreme Court. Appeals from criminal cases in state courts were no broader than they are today. The clemency power remains unimpaired, albeit arguably underused.
I don’t see any originalist argument for a constitutional mandate for any broader review than we presently have.