Approximately two weeks after the final opinion of the 57 argued cases decided by the Supreme Court in the October 2025-26 Term was filed, this column presents an overview of the “pure” criminal law decisions the court issued. By my characterization, there were 16 (or 17) “pure” criminal law cases decided after full briefing and argument since last October. This number (16) represents 28% of the court’s total 57 argued cases. (If you count First Choice v. Davenport, a civil case finding standing to challenge a state attorney general’s investigative subpoena, as “pure,” then it’s 17 pure criminal cases, almost 30%.) Thus, the first point is that although the court itself does not differentiate, criminal law represented a substantial part of the Supreme Court’s merits work this term.
My list of the 16 or 17 “pure” criminal law decisions is at the end of this column. I suggest you scroll down to examine it now. Below, I also provide a brief description of some of the “big” cases, and some overall observations. No other source, not even the court, tracks all the criminal law work of the Supreme Court like I do. So even though the court does more criminal law work than just these “pure” cases, identifying and compiling this list, and then considering them all, takes significant time and analysis.
As always, for a full understanding you should read the official opinions in their entirety. My Annual Review of the Supreme Court’s Term: Criminal Cases also details the entirety of this SCOTUS criminal law universe, and it is usually published by the Criminal Justice Section of the ABA in August. Expect a more comprehensive column, or two, from me then.
Another term favoring criminal defense positions
A specific point of interest to some observers is that of the 16 “pure” criminal law decisions, 11 produced results in favor of a criminal defendant or a criminal defense position. That is, roughly two-thirds of the pure criminal law cases decided by the court after full briefing and argument favored either the criminal defendant or defense view. Some critics of the court may find this pro-defendant pattern surprising – but it is duplicative of the results I reported last term (10 of 14 pro-defendant results). Below, I briefly consider why this might be so. And I observe that some pro-defendant decisions were not always for results that a politically “liberal” ideology might favor (for example, two decisions favoring gun possession rights). Do court observers need to shift their labels or definitions?
It’s also important to note that while 16 pure criminal law cases is a substantial part (about one-third) of the court’s merits opinions, the court considers criminal law issues in many other parts of its docket. For example, another 11 cases were decided summarily, “per curiam,” without full briefing or argument. Another 20 or so cases are what I’d call “related” to criminal law, but not purely focused on criminal matters – for example, five full decisions on immigration topics. Other criminal law issues can appear on the interim or “shadow” docket, and still other writings by justices appear as “Opinions Relating to Orders” on the court’s website. Finally, the court has already granted review in 24 cases next term (starting in October), and I count nine of those (over a third) as criminal. While today’s column considers perhaps the most important portion of the court’s work – cases decided after full briefing and oral argument – it is therefore still only part of the iceberg.
There were some “big” (important) criminal law cases
At last week’s live SCOTUSblog event, panelists discussed why identifying “big” Supreme Court cases is controversial. And presenting a few of these here is not to deny the importance of the other individual criminal law cases (take, for example, Abouammo v. United States, an important decision explaining constitutional limits on where the government can file criminal charges). But here are some which I thought were of particular significance.
Guilty pleas: Hunter v. United States. Last month I explained why I think Hunter is a “sleeper” decision, which a few years from now may be viewed as the most important criminal case of this term. On the relatively narrow question presented, eight justices agreed that even when a defendant has waived any appeal after a guilty plea is entered, that waiver need not be enforced – that is, a court can still consider an appeal – when a “miscarriage of justice” would otherwise result. Justice Elena Kagan’s majority opinion was carefully crafted to not say too much, and thereby successfully capture justices from all points of view. But a three-justice concurring opinion by Justice Neil Gorsuch could, if accepted by a future majority, have huge implications for many areas of criminal law. Gorsuch questions the constitutional validity of the entire plea bargain structure currently dominant in this country, governing over hundreds of thousands, or around 90%, of criminal dispositions. He questions the fundamental legitimacy of what “voluntary” means for waivers of constitutional rights that undergird many aspects of criminal procedure (for example, consent searches under the Fourth Amendment). I think Justice Brett Kavanaugh saw the implications: he filed a brief counter-concurrence (joined by Justices Samuel Alito and Amy Coney Barrett) to tersely note that he “respectfully disagree[d]” with Gorsuch. Keep your eyes open for future lower court applications of Kagan’s and Gorsuch’s opinions in Hunter.
Fourth Amendment decisions: Chatrie v. United States (and Case v. Montana). Kagan assembled a six-justice majority to hold in Chatrie that governmental-compelled obtainment of a person’s cellphone location data from their carrier is a “search” triggering application of the Fourth Amendment. Here also Gorsuch wrote a concurrence questioning the doctrinal foundations of modern Fourth Amendment law. Exactly how such “geofence” searches should be conducted was remanded to the lower courts. This ruling produced a huge sigh of relief for many; a ruling the other way would have endorsed widespread warrantless government surveillance.
Death penalty decisions: Pitchford v. Cain and Hamm v. Smith. The court vacated one death penalty judgment in Pitchford and affirmed by default the vacatur of a death penalty in Hamm. Kavanaugh’s opinion for five justices in Pitchford holds that a defendant must be given a fair opportunity for a rebuttal when a prosecutor has asserted seemingly race-neutral reasons for striking black jurors. Interestingly, Kavanaugh had written a law journal note to the same effect while a law student in 1989.
Meanwhile, after full briefing and oral argument in Hamm, the court dismissed the case without opinion or identified author (per curiam) as “improvidently granted” (a DIG, short for “dismissed as improvidently granted”). The case had had a lengthy and somewhat tortured history; Justice Sonia Sotomayor explained that in detail in a concurrence, and then explained why, after intense examination, it was “inappropriate” to use this case to try to settle the correct method for considering multiple IQ test scores when evaluating death penalty ineligibility under the 2002 decision of Atkins v. Virginia. The effect of this DIG appears to leave in place the Alabama district court’s 2021 ruling that Joseph Clifton Smith “is intellectually disabled and cannot constitutionally be executed.”
Second Amendment: Wolford v. Lopez and United States v. Hemani. The court vacated the conviction of a defendant who used illegal drugs for unlawful weapon possession in Hemani, and struck down a Hawaii statute banning concealed-carry firearm possession in Wolford (the statute banned even licensed possession on privately-owned property open to the public unless the owner had expressly given permission). I say a little more about them below.
Themes, observations, and trends
My view is that too-fast “review of the court’s term” discussions are often overly dominated by the most recently issued decisions and follow popular media “instant analysis” channels that are too facile to last. (Again, last week’s live SCOTUSblog event discussed this idea.) They miss cases, themes, and trends that later become apparent. Today’s review is still in the “magazine” category; I may revisit or revise some of these ideas. For now, scroll down and review the list of “pure” criminal law decisions. Then you might consider these observations:
- Not only did two-thirds of the resulting judgments favor the criminal defendant (11 of 16, marked with asterisks below), but four of them were unanimous and another was 8-1. In the same vein, three of the cases that did not favor the defendant were also decided 9-0. The broad agreement among the justices in criminal law cases suggests that they are being careful about their initial decision to review a criminal case. It also suggests to me that the “liberal” justices – Kagan, Sotomayor, and Ketanji Brown Jackson – are especially vigilant, both in granting “good” cases and denying review in “bad” ones. I imagine these three justices firmly instructing their clerks to search the 3,000-plus petitions for review filed each term not just for cases of injustice or that seem legally “wrong,” but also presenting issues that a liberal or pro-defense position might prevail upon – that is, “win” – within the nine-member court.
- That last point, and this term’s lopsided pro-defense balance of results, also supports my “wild card court” theory regarding how best to think about the current court (presented in these pages in May). (Adam Feldman appears to also have endorsed my theory without naming it, here.) The three liberal justices cannot “win” without at least two votes of the other justices. Justices Clarence Thomas and Alito are unlikely compatriots; they are usually firm votes for law enforcement interests in criminal cases. But Gorsuch and Barrett have plainly revealed independent streaks since their Trump appointments, and Kavanaugh enjoys a “friendly consensus” (my words) when possible, and so will join the “libs” when he can (particularly if they can find a case or argument that Kavanaugh has happened to have written a law journal note about). Meanwhile, Chief Justice John Roberts wants to lead – he once again filed no dissents this term – and he seems to enjoy finding cases that can add some ideological balance, appearing as the neutral “umpire” he has said judges should personify. Moreover, Roberts enjoys the majority assignment power of the chief. If a case can be imagined to capture the votes of two or more of these four “wild card” justices, then the liberal justices will push the issue. The result this term was a decidedly pro-defense result sheet.
- Seven of the 11 asterisked (pro-defense) decisions were authored by justices appointed by President Donald Trump (and one more by Alito, one of the staunchest law enforcement conservatives on the court). This also demonstrates that quiet and careful case selection at the certiorari stage can lead to liberal “wild card” results a year or so later.
- Even more interesting and possibly surprising: Chief Justice Roberts was part of the majority in all 11 pro-defense cases. Thus he could choose who to assign authorship to for each opinion. And he chose to write in none of them. This is nothing new: Roberts has always evinced a marked disinterest in writing in criminal cases. However, his quiet leadership from silence is shown in his criminal law votes – “moderating from the front” as Professor Richard Re recently put it. And he appears to have exercised his assignment power (which he has by tradition, not rule) this term to assign many of the criminal law cases to the more “wild card justices,” ensuring narrow decisions when needed while still making sure the liberal justices will get an equal number of majority opinions by term’s end. Adam Feldman recently called the chief’s practice “strategic assignments.”
- The “easiest” cases are not always at the start of the term. Cases in the list below are by order of decision release, earliest in the term to latest, accompanied by the vote in each case. The first criminal law decision this term (indeed, the first of all the argued cases), Bowe v. United States, proved difficult for the justices, producing a 5-4 split on Jan. 9. Yes, the next five criminal decisions were 9-0 and the next 5-4 criminal law decision (Hamm) was not filed until five months later. Neither are decisions issued at the end of the term necessarily the most difficult. Both Abouammo v. United States and Hemani, filed near the end of the argument term in mid-June, were 9-0 decisions. Hard or easy, cases are scheduled for oral argument based on when full briefing will be done (that is, when the case is “ready” for argument). Likewise, opinions are usually issued in rough correlation to the month they were argued. Indeed, hard or easy, the justices do not usually even discuss their views on the issues until oral argument, and opinion releases are not timed with regard to perceived difficulty.
Trends
Well, obviously, the Second Amendment is a hot topic for the court as well as the nation. In addition to two decisions this term, and United States v. Rahimi in 2024, the court has already decided to review two more cases (consolidated as Viramontes v. Cook County) about whether AR-15 semi-automatic rifles are protected by the Second Amendment’s “right to bear arms.” Such sophisticated, lethal guns were unknown to the framers, and when the court first recognized the individual right to bear arms in District of Columbia v. Heller, Justice Antonin Scalia explained that “an important limitation” on the “weapons protected” by the Second Amendment were “those in common use at the time” (my emphasis). Advocates say they are “in common use” today (a debatable proposition depending on the denominator used) and that the Second Amendment prohibits their ban. Will “in common use” be governed by the time of the framers, or today? I can imagine a vehement “originalist” disagreement here. In any case, the trend of developing the appropriate scope and limitations for the Second Amendment (more than 3,000 cases filed since 2022?) will continue.
Some other trends:
- As noted above, Barrett and Gorsuch continue to establish their independent, and incisive, analytical personalities. Their many separate opinions as well as majorities will make them influential forces at the court for decades to come. Gorsuch in particular has demonstrated his willingness to investigate, and question, settled legal doctrine all the way to their roots, by concurring opinions in Hunter, Chatrie, and Barrett v. United States (double jeopardy). Meanwhile, Jackson has also established her independent voice, filing the most separate dissents of any justice this term (although not very often in pure criminal cases, given their often pro-defense result).
- In addition, the use of “history and tradition” in constitutional analysis remains an evolving process. The Wolford opinions are a good example. Barrett continues to present her own theories, which depart from Thomas’ in important ways. And Jackson, while not ignoring history, continues to be an influential critic of this originalist method, arguing (for 32 pages!) that “history and tradition” has become a judicially manipulable “free-for-all.” Sarah Isgur and David French have also, and more than once, analyzed, and critiqued the justices’ use (or misuse) of “history and tradition” this term in their Advisory Opinions podcast, particularly regarding the gun cases. As a general matter, competing opinions like those filed in the birthright citizenship case demonstrate that judges can pick and choose what “history” to focus on (like picking out your friends in a crowded cocktail party), and that even agreed-upon historical events can be interpreted to mean very different things. To me, it seems that “text and precedent,” with history used as one tool for mining a text’s meaning, is a better way to understand the current approach of a majority of justices (similar to Barrett’s position expressed separately in a 2024 trademark case, Vidal v. Elster).
This column is already way overlong, and there’s always more to say (that’s what summer is for). But one more thought relevant specifically to the criminal law cases this term. And then the list.
Is the current court “liberal” when it comes to criminal law? Do we need to shift, or rethink, our use of the “liberal” label?
When the government loses in a Supreme Court criminal law case, it is factually accurate to characterize the result as favoring a criminal defense position. (This is so even if, as Alito dissented in Chatrie, the defendant may not ultimately win when the case gets back to the court below.) As noted, the results this term in pure criminal law cases show that the pro-defense view prevailed 70% of the time. But do a majority of pro-defendant decisions mean the current court is secretly “liberal” on criminal law issues? Forty-some years ago, this easy dichotomy felt clear. The Rehnquist and Burger courts were viewed as anti-criminal defendant and synonymous with “conservative,” and the preceding Warren court was criticized as too liberal for favoring the rights of criminal defendants.
But this term the most conservative justices on the court, Thomas and Alito, voted in favor of criminal defendants regarding firearms. In Wolford, Alito wrote to champion the constitutional right (a civil liberty?) of persons to carry firearms in public places without threat of criminal prosecution – while the three “liberal” justices dissented. In Hemani, Thomas not only concurred in a 9-0 criminal conviction reversal, but went on to advocate for the broad invalidation of many criminal laws that regulate firearms possession. While those two decisions seem undoubtedly “pro-defendant” (or anti-criminal regulation), may they also be called “liberal” or, as remarked earlier, do critics need to rethink what these simplistic labels mean?
I often ask my students whether – and if so, why – their favored results would change if the “politics” of the issue changes. For example, are liberals in favor of federal intervention when it comes to civil rights, but against it when it comes to marijuana regulation? Or as I similarly asked when I wrote (way back in September) about the court’s summary reversal in Noem v. Vasquez Perdomo, would law-and-order conservatives still favor broad “reasonable suspicion” stop-and-frisks, if the tactic were applied to anyone attending a gun show? Some liberal court observers will resist the idea that the current court is “liberal” when it comes to criminal law issues. But the lopsided pro-defendant numbers are accurate (aren’t they?). So ... how do you think the court should be characterized in this area?
The 16 (or 17) “pure” criminal law decisions in argued cases
Methodology of the list below (by short form): Shorthand names for the cases are listed by date of announcement (early to late); each hyperlinked case name takes you to the court’s opinion. Each listing includes the opinion author and vote count; and a substantive division within a majority is indicated in parentheses, for example, “9 (6+3) to 0”). A one-sentence description of the holding is then provided. Decisions that favored a criminal defendant or a defense-friendly view are marked with an asterisk *.
*Bowe (Jan. 9, Sotomayor, 5-4): Federal prisoners (unlike state) are not barred from filing “second or successive” habeas corpus challenges to their convictions.
Case (Jan. 14, Kagan, 9-0): Warrantless home entry, when there is a reasonable basis to believe that emergency aid is needed, does not violate the Fourth Amendment.
*Barrett (Jan. 14, Jackson, 9 (5+3+1) to 0): Congress did not clearly authorize conviction for violation of two statutory weapons possession subsections for a single act, so the conviction here must be reversed (double jeopardy implications).
*Ellingburg (Jan. 20, Kavanaugh, 9-0): Restitution in a federal statute is criminal punishment for purposes of the Constitution’s ex post facto clause.
Villareal (Feb. 25, Jackson, 9 (6+2+1) to 0): Trial court order prohibiting discussion of the defendant’s testimony overnight while defendant is on the stand, does not violate the Sixth Amendment right to counsel.
*Olivier (March 20, Kagan, 9-0): Person convicted of an offense may still challenge, prospectively, the constitutionality of the same criminal statute they violated, to their anticipated future conduct.
*Rico(March 25, Gorsuch, 8-1): Federal statute does not authorize extension of a supervisory release period even if the defendant is absconded.
**First Choice (April 29, Gorsuch, 9-0, not “pure” criminal law): Nonprofit group has standing to challenge a state Attorney General investigative subpoena requesting, inter alia, donor identification information.
*Hamm (May 21, per curiam, 5-4): Death penalty case dismissed after argument as improvidently granted. (Justices disagree about how to consider multiple IQ test results in determining intellectual disability ineligibility for execution.)
*Pitchford (May 28, Kavanaugh, 5-4): Batson requires fair opportunity for defendant to rebut the prosecution’s asserted race-neutral reasons for striking black jurors.
Fernandez (May 28, Barrett, 8 (6+2) -1): Alleged invalidity of a federal conviction must be pursued through habeas corpus, and is not an “extraordinary and compelling” reason for compassionate release.
Rutherford (May 28, Barrett, 6-3): A sentencing disparity resulting from a non- retroactive legislative change is not an “extraordinary and compelling” reason for compassionate release.
Abouammo (June 11, Kagan, 9-0): Venue for knowingly falsifying a document with intent to obstruct is constitutionally required to be in the district where the falsification occurred (not where the obstruction may have been felt).
*Hunter (June 18): Kagan, 8 (2+3+3) to 1): A waiver of appeal as part of a guilty plea bargain is unenforceable when a “miscarriage of justice” would result.
*Hemani (June 18, Gorsuch, 9 (7+2) to 0): Prosecution of a regular marijuana user under a law criminalizing firearm possession by any “unlawful user” of a “controlled substance” violates the Second Amendment.
*Wolford (June 25, Alito, 6-3): State law prohibiting licensed concealed-carry of firearms on private property open to the public (like gas stations, stores, and restaurants) without express permission from the owner “flipped” the “standard common law” rule and violates the Second Amendment.
*Chatrie (June 29, Kagan, 6 (5+1) to 3): Compelled law enforcement obtainment of cellphone location data from a person’s carrier is a Fourth Amendment “search.” How to apply the warrant requirement is remanded for further consideration.
