I am going to need a few hours (and days and weeks) to fully process the latest huge vagueness ruling from SCOTUS today in US v. Davis (basics here). But Justice Gorsuch’s latest decision to serve as the fifth vote (and to write the opinion for the Court) in this major ruling for a federal criminal defendant has me now eager to do a (too) quick accounting of his work in this space this Term. Though we still await two more notable criminal rulings this Term — US v. Haymond and Mitchell v. Wisconsin — I do not think it is too early to start reviewing the Term that was and Justice Gorsuch’s particularly interesting role in the criminal docket.
I am going to focus here on major contested criminal justice ruling from OT 2018 (going in the order argued), and I welcome feedback on this accounting as I start taking stock:
US v. Gundy, 5-3 ruling for feds, Justice Gorsuch in dissent for federal defendant
Madison v. Alabama, 5-3 ruling for state capital defendant, Justice Gorsuch in dissent for state
Stokeling v. US, 5-4 ruling for feds, Justice Gorsuch in majority
Garza v. Idaho, 6-3 ruling for state defendant, Justice Gorsuch in dissent for state
Bucklew v. Precythe, 5-4 ruling for state in capital case, Justice Gorsuch authors majority
Gamble v. US, 7-2 ruling for feds, Justice Gorsuch in dissent for federal defendant
Mont v. US, 5-4 ruling for feds, Justice Gorsuch in dissent for federal defendant
Flowers v. Mississippi, 7-2 ruling for state capital defendant, Justice Gorsuch in dissent for state
Davis v. US, 5-4 ruling for federal defendant, Justice Gorsuch authors majority
Rehaif v. US, 7-2 ruling for federal defendant, Justice Gorsuch in majority
Assembling this abridged list of notable criminal justice rulings this Term confirms my instinct that state capital defendants ought not be looking to get a vote from Justice Gorsuch (with the Chief Justice and Justice Kavanaugh seeming the most likely to swing), while federal defendants ought to be reasonably hopeful to get his vote in contested cases. Though I hope and expect I the fine folks at SCOTUSblog and others can and will be do a more rigorous accounting on these matters at some point, I am eager to prime on-going conversations about how the current Court continues to be so very interesting and somewhat unpredictable on so many criminal cases.