The U.S. Supreme Court (unlike some) does not divide its docket between civil and criminal cases. So I do. With about five weeks left in the current Supreme Court term, it’s time for a quick update on how the court is handling its criminal cases this term, and a brief description of “big” criminal cases that still await decision. As Justice Amy Coney Barrett recently remarked (though this is my description), the idea of “big cases” is more a phenomenon of publicity rather than legal significance, and Supreme Court observers should “read [the court’s opinions and commentary] very critically,” with attention to detail before making any broad conclusions.
Overview: the numbers, and a surprising(?) observation
By my count, about half (30 of the cases that the court will decide this term after full briefing and oral argument (about 58 total)) are what I call “criminal law and related” (CLAR). That is, they involve either issues that are important to criminal law litigators, or they involve facts that speak to “criminal” behavior. If you add five criminal law “summary” decisions already announced (that is, cases decided without oral argument, usually issued “per curiam” without an identified justice as the author), that makes 34 CLAR decisions for the October Term 2025. (The Supreme Court’s annual term begins in October of one year and runs until October of the next year.)
Thirteen of this term’s cases involve what I call “pure” criminal law issues, and another five are important for immigration law, a topic often bound together with criminal law implications. Thirteen of the 30 argued criminal cases have already been decided. So the coming weeks, starting this Thursday, should reveal a large number of decisions important to anyone interested in criminal law.
Of the 19 CLAR cases that remain to be decided, I would say that six are “big” cases that should draw your attention (briefly summarized below). Another four immigration cases still await decision (including the birthright citizenship case). This is undoubtedly going to be a big term for immigration cases, unsurprising in the wake of the Trump administration’s intensified focus on both lawful and unlawful immigrants.
This term, like last term, does not match popular tropes
Here’s one final observation that may surprise some current court critics. As I explained after last year’s term ended, the results in criminal law cases often quietly go, these days, in directions that liberals might prefer. Last term this was true in 10 of the 14 “pure” criminal law cases. This term, so far, 10 of the 13 decided criminal law decisions have gone in either the defenses’, or the “liberal,” direction. Here is a shorthand list of the 10, with hyperlinks to the SCOTUSblog case pages: Villarreal v. Texas; Barrett v. United States; Bowe v. United States; Ellingburg v. United States; Case v. Montana; Hencely v. Fluor Corporation; Rico v. United States; GEO Group v. Menocal; Urias-Orellana v. Bondi; First Choice v. Davenport; Olivier v. City of Brandon; Havana Docks v. Royal Caribbean; and Hamm v. Simth.
Some decisions not involving pure criminal law issues can be hard to characterize: for example, should the decision in favor of an American company regarding property seized after the 1959 Cuban Revolution be described as liberal or conservative these days? And of course, the liberal imbalance may not continue as more controversial decisions that often occupy the end of a term roll out; current immigration cases seem to lean decidedly against immigrants. Still, the presence of “wild card” justices, and careful case selection decisions influenced by the three liberal justices behind the scenes (something I need to further write about), present a more defendant-friendly picture in criminal cases than the court’s liberal critics might imagine. I’ll be back this summer to report on the final term results.
Important criminal law cases awaiting decision
More decisions will be released this Thursday, and three cases argued in November have not yet been issued (an unusually long wait). You can follow the court’s opinion announcements on SCOTUSblog’s live feed starting at 9:30am eastern – shamefully, there is no live audio or video of opinion announcements even though the justices publicly take the bench when they deliver them. Watch for decisions in Landor v. Louisiana Department of Corrections and Public Safety (civil damages in prisoner religious civil rights lawsuit), and Rutherford v. United States and Fernandez v. United States (permissible grounds for re-sentencing in compassionate release cases).
Two important gun rights cases should also be decided soon. In United States v. Hemani, the defendant was charged with violating a federal law prohibiting possession of a weapon by “an unlawful user of or addicted to any controlled substance.” The U.S. Court of Appeals for the 5th Circuit held that provision unconstitutional under the Second Amendment, and at oral argument, the justices seemed skeptical about applying this broad statute to, at least, the facts of this case (Hemani told FBI agents that he used marijuana roughly every other day). Expect a pro-defendant decision narrowing the statute’s interpretation if not striking it down entirely (would that be a liberal or conservative result?). Meanwhile, in Wolford v. Lopez, the court is examining a Hawaii law prohibiting possession of a firearm on private property that is open to the public (imagine gas stations, restaurants, etc.) unless the property owner has expressly given permission. As in Hemani, many hypotheticals offered at oral argument point toward a decision favoring gun owners.
Three other criminal cases involving very different questions will likely resolve significant questions. In Abouammo v. United States, the justices will announce how the Constitution’s venue rules – that is, the Article III and Sixth Amendment requirements that criminal cases be tried in the district where the crimes “have been committed” – apply to a case where the defendant acted outside the state where he was charged, but with knowledge that his actions would be received and felt in the district that ultimately charged him. And in Hunter v. United States, the court will decide when a waiver of appeal given by criminal defendants in return for a plea bargain should have an implied exception for “miscarriages of justice.”
Meanwhile, Pitchford v. Cain involves, like most habeas corpus challenges to death penalty convictions, very specific facts in a very lengthy record. The underlying issue is whether four of five potential Black jurors were stricken based on their race – by the same local prosecutor who was found to have unlawfully struck Black jurors in the 2019 case of Flowers v. Mississippi, with the same trial judge and the same “W” and “B” markers next to jurors’ names. The Mississippi courts ruled, however, that Pitchford’s lawyer had waived the issue by not objecting vociferously enough, and Mississippi now argues that that technical ruling blocks federal courts from reaching the issue of race discrimination. The idea that Terry Pitchford was sent to death row in Mississippi 20 years ago by a racist prosecutor is strong. Yet the intricacies and federalism implications of federal habeas review of state court judgments are also a serious thicket. The court’s decision in Pitchford is likely to be deeply divided as the justices try once again to clarify rules for the evaluation of claims of racial bias in jury selection.
Finally, in what is likely to be one of the last decisions issued this term, in Chatrie v. United States the justices are struggling over how the quarter-millennium-old Fourth Amendment should apply to modern wireless location data, when used by the government to issue “geo fence” search warrants issued to cellphone data carriers. The carriers then go through the data files of millions of customers, to pin down specific individuals who were at a particular location at a particular time and day. Two hours of oral argument revealed mainly that no one is quite sure how to write perfect rules, with a “go slow and narrow” viewpoint perhaps controlling.
One big case that wasn’t
Back in September I previewed Hamm v. Smith as one of the most important criminal law cases facing the court this term. The court had already granted and remanded this Alabama death penalty case back to the U.S. Court of Appeals for the 11th Circuit in 2024, and then granted full review after the appellate court affirmed a finding that Joseph Clifton Smith was too intellectually disabled to be constitutionally executed. Three justices appeared ready to overrule the 2002 precedent (Atkins v. Virginia) that set the constitutional prohibition on executing the “mentally retarded” (the term then used). Initially, 14 states filed to support that result; on the second go-round 18 states asked the court to “scal[e] back” Atkins if not overrule it. At oral argument last December, former Attorney General Seth Waxman forcefully argued for Smith, and assistants to the solicitor general of the United States and Alabama both argued for a result that would allow Smith to be executed. The divided justices gave no hint of a firm result.
Then last week the court dismissed the case as “improvidently granted” (a DIG order), a rare result that happens once a term or fewer. A DIG has no precedential effect; it is as though the court had never granted review of the case in the first place. Nevertheless, Justices Sonia Sotomayor, concurring, and Thomas and Alito, dissenting, provided 62 pages of explanation of their competing views. This DIG seems clearly to be based on an inability to find any consensus position on precisely how to consider and evaluate IQ tests (which seem to embody a fair amount of imprecision) for establishing mental disability in an execution case.
Although the procedural foundation or details about the effect of a DIG (is it the same as a denial of certiorari?; do similar time limits or other quirks apply?) are unexplained in the Supreme Court’s rules and unexplored in the literature, the result seems to be clear and undisputed: it leaves in place the 11th Circuit’s ruling, which was to affirm the district court’s judgment that Smith cannot be executed. This is of course a “big” deal for Smith, and also for capital penalty litigators. One imagines that the lack of consensus among the justices is clear enough that they are unlikely to grant review in an intellectual disability case anytime soon. So capital litigators may now feel some freedom in making highly individualistic arguments for mentally disabled clients without fear of certain high court reversal.
Conclusion
The foregoing addresses just a few of the 19 criminal law and related cases remaining to be decided by the Supreme Court this year, almost certainly by the end of June (although I personally would like to see the birthright citizenship executive order struck down on July 2, the day before our recognized Independence Day holiday weekend). The next five weeks will be packed with Supreme Court decisions and commentary. Like many – last week there were over 3,000 live participants, and that number will rise as final opinion days arrive – I will be tuning in to SCOTUSblog’s live online coverage on decision days to get immediate information, as well as comments, about case results and opinion details. “See” you there!
