If you read my columns closely, you know this: over the past two terms, 21 of the court’s 30 “pure” criminal law decisions have been pro-defendant or defense position. Eleven of 16 in the 2025-26 term, and 10 of 14 in the prior one. That’s 70%. Given a conservative court, does that stat surprise you? What justices are leading to these overall numbers, and who is leading the charge? Finally, does any of this suggest what we might look for in this term’s first criminal law case, Beaird v. United States, to be argued next Tuesday? Here are some further thoughts as we begin the 2026-27 term.
My wild card theory and approach to criminal case results
Last May, I described my “wild card” analysis for thinking about the current court. There are two generally conservative or “pro-government” votes on one side (Justices Clarence Thomas and Samuel Alito) and three generally “liberal” or “pro-defense” votes on the other (Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.). But in a nine-justice court, a position cannot “win” without five votes. So the four justices left in the “middle” – Chief Justice John Roberts, and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – are your wild cards. Each has been less predictable, in some cases, than the justices at either end of the spectrum. But to stick with the analogy (imperfect I know, Supreme Court cases are hardly a game), if some cards in the deck might be “wild,” you have to hope to draw some wild cards (justices) for your hand to win. In other words, to prevail with today’s court, an advocate must aim for those justices that might be in play.
This short column can’t give you all the details of the criminal cases this term, but you’ll be able to review it in 50 pages of detail when my “Annual Review of the Supreme Court’s Term, Criminal Cases” booklet is published on the ABA’s Criminal Justice Section webpage later this month. Below are some facts and views I find interesting, especially when it comes to the wild card justices, when I examine the details of the criminal opinions and votes in all 16 “pure” criminal law cases from the recent term.
Who is “the wild card justice” for criminal cases?
When “counting to five” is the wild card goal for pro-defense criminal law advocates in a conservative-leaning court, looking at the 11 pro-defense decisions, and in particular the close ones (those decided 5-4 or 6-3) provides the best indicator of who the “wild card justices” are. For the five decisions that did not favor the defense position, four were decided 9-0 or 8-1, plus one 6-3 decision (Rutherford) in which the dissenting liberal justices’ votes did not affect the result, and all four wild card justices voted with Thomas and Alito. So my further analysis is focused just on the pro-defense rulings. Moreover, for purposes of today’s column, I focus more on the votes than on the substantive holdings.
First, who authored the 11 pro-defense cases? Two (Pitchford and Ellingburg) were written by Kavanaugh and two (Rico and Hemani) by Gorsuch. Those two justices do not always agree, but they are clearly wild card justices who play a major, often dispositive, role in criminal cases. Authorship of five other pro-defense decisions was shared among the three liberal justices, and one was per curiam. That adds up to 10 of the 11. (The last decision that favored a criminal defendant – Wolford, a pro-gun possession case – was authored by Alito and might not necessarily be characterized as “pro-defendant,” see below.)
Let’s move on. In addition to Gorsuch and Kavanaugh, Barrett voted with the pro-defense majority in eight of the 11 pro-defense cases. But she did not author any of them. She could be described as the dispositive 5-4 majority vote in Hamm, but her dissenting votes in the other closely-divided pro-defense decisions (Chatrie 6-3, Pitchford 5-4, and Bowe 5-4) make her more consistently less pro-defense (and also perhaps less interested in criminal law) than Kavanaugh or Gorsuch.
Meanwhile, the chief justice, as I noted in July, wrote none of the pro-defense decisions, even though he voted silently with the majority in all but one. Instead, he assigned the writing of the court’s opinion in those cases to another justice. (The lone exception was Hamm, a one-line “dismissed as improvidently granted” 5-4 result where the chief just quietly noted his dissent.) I discuss below the unusual fact that the chief gave the responsibility for writing the opinion for the court to Kagan, in five of the 10 pro-defense cases. She is not generally a wild card, but I think she has become the “go to” justice to author criminal law decisions that require a careful majority approach, whether for a criminal defendant (for example, Chatrie) or not (for example, Case).
Now let’s talk more specifically about the wild card influences on pro-defense cases. “Start with this” (as Gorsuch likes to say). As his book “Overruled” suggests, Gorsuch tends to favor people whom he thinks the government has treated unfairly. Hemani provides a great example: Gorsuch paints a very sympathetic picture of this occasional marijuana user to rule that his prosecution for possessing a gun goes well beyond what the Second Amendment allows. Meanwhile, Kavanaugh seems quietly interested in strict procedural fairness in death penalty cases (for example, Pitchford and Hamm this term, 5-4 decisions in which Kavanaugh was arguably the dispositive vote). It has also been noted that Kavanaugh also almost always pairs up with the chief justice. It’s my belief that, in criminal cases, the chief is content to follow his junior mentee’s lead, because the chief has bigger, non-criminal fish to fry (think striking down tariffs or preserving birthright citizenship). Given that, pro-defense advocates often “pitch” for the votes of Gorsuch and Kavanaugh.
Only three of the pro-defense cases were decided 5-4 (Bowe, Hamm, and Pitchford). Here is where the wild card justices most matter – the “libs” need two more to get five. In two of the 5-4 pro-defense decisions (Bowe and Pitchford), Kavanaugh and the chief justice paired up to be the dispositive votes. Meanwhile, in Hamm, Barrett was a quiet but dispositive pro-defense vote (together with Kavanaugh). Because Hamm was a simple one-line “dismissed as improvidently granted” order, both Barrett’s vote, and the chief justice’s quietly noted dissent, might go “under the radar.”
Of course, analysts must also consider the individual substance of each case. In Hamm, for example, the arguments turned on deeply complicated mathematical and science-based research and disputes, regarding how experts, and ultimately states, should determine whether a person is “intellectually disabled” (and thereby constitutionally barred from being executed). As Sotomayor pointed out in a lengthy concurrence, there was little or no good record below, or scientific agreement, on how to determine that. I think that flaw, as well as the intricate details of the science at issue, was attractive to a DIG vote by a careful proceduralist like Barrett.
Meanwhile, in Pitchford, which involved a Batson challenge to racial juror strikes, Kavanaugh had written a law school note on the topic way back in 1989. The constitutional solution he wrote out for the majority in Pitchford is exactly what he had advocated after much thought 37 years earlier. Of course, every case has individual, unique aspects, and there are no failsafe indicators to predict or generalize perfectly in criminal cases overall. But tireless digging for nuggets like Kavanaugh’s law school note, and careful mining of details and the record as in Hamm, should be part – expensive and deeply time-consuming – of the Supreme Court wild card hunt.
By the way, I will quickly concede that it is possible to argue with aspects of my analysis. For example, when discussing “pro-defense” rulings, some might just “throw out” the two Second Amendment decisions. In striking down two restrictive gun-possession laws, Alito and Thomas, who are not usually viewed as defense-friendly, voted for the criminal defense position (overall in Wolford, and as applied in Hemani). The liberal justices favor more restrictive gun laws, so were less sympathetic to persons convicted under such laws. (Moreover, their votes were not necessary for these two pro-defense decisions.)
I questioned back in July whether criminal defense advocates want to re-define what liberal and conservative means in this (and other current) contexts. Professor Richard Re has recently made similar observations regarding other legal topics.
Kagan has become the “go to” justice for criminal cases
Here’s another surprising stat: of the 16 pure criminal law cases in this last term, Kagan wrote a third (okay, 31.25%) of them. Kagan had little or no criminal law experience prior to her nomination. Yet the chief justice, who was in the majority in 15 of the 16 pure criminal law decisions, chose Kagan among multiple colleagues to write the opinion for the court in five, a lot more than any of her colleagues. Some conservative wags have previously chided the conservative justices as ceding control to “the Kagan court.” Kagan’s persuasive powers, both in writing and in oral argument, have long been noted. But the court is still decidedly the chief justice’s. He has just made Kagan the “go to” justice in criminal cases – whether pro-defense or not.
Three of the five decisions written by Kagan (Chatrie, Hunter, and Olivier) were “pro-defense;” the other two (Case and Abouammo) were 9-0 rulings against a criminal defendant. These last two cases were thus “easy.” Still, they required careful parsing, as well as succinct and stylish writing, to keep all the other justices on board. And even so, in Case (which involved an “emergency aid” exception to the Fourth Amendment’s warrant requirement), Sotomayor and Gorsuch added brief concurring opinions to address tangential (but not unimportant) points that Kagan undoubtedly had avoided because not all would agree with them.
Kagan’s other two assignments, Chatrie (6-3) and Hunter (8-1, but with deeply divided concurrences splitting 3-3) were different. Chatrie, preserving Fourth Amendment protections for cell phone data despite users’ “agreeing” to share it with service provider data banks, was one of the most important decisions of the term, affecting tens of millions of people. As for the Hunter opinion and its divided concurrences in mid-June, I immediately described it as “the most important criminal case of the term.” Why would the chief choose to assign such important (as well as so many) criminal law writings to his more liberal colleague?
Part of the rationale for assigning to Kagan is simply mathematical, with some attention to predicted ideological results. By an unwritten tradition, the chief wants his opinion assignments to come out evenly – that is, ending up with either six or seven majority opinions for the 58 authored majority decisions written by each of the nine justices. Roberts has called the predictive enterprise a bit like a “Rubik’s cube.” He knows that on the current court, Kagan will be in the minority in many controversial civil cases. So “the libs” have to get some assignments in “easy” criminal cases.
But I don’t think that explains why Kagan got a third of the 15 criminal law opinions for the court. Jackson was assigned only two (Barrett and Villareal, both 9-0). Villareal, involving what a defense lawyer may do at trial, naturally drew on Jackson’s prior life as a defense attorney. And Kagan’s senior colleague Sotomayor received only one criminal law assignment (Bowe, a 5-4 split early in the term; frankly I wonder whether Sotomayor’s first draft might have actually lost some votes in that one, but that is a story for another day.) All of this is to say, math alone does not explain uneven assignments in criminal cases here.
Instead, I think the assignment of criminal law opinions for the court to Kagan displays an unspoken recognition by the chief that she is an excellent writer and what I would call a persuasive “majority-assembler.” That is, Kagan writes very carefully, to capture votes (if not the full views) of as many of her colleagues on both sides of the popularly perceived ideological divide as possible. Hunter is a good example (and both Case and Chatrie are others). Based on careful writing and direct quotation from precedents, Kagan persuaded eight relatively dissimilar members of the court to agree that there is a “miscarriage of justice” exception to the enforcement of guilty plea appeal waivers. Kagan’s opinion hewed closely to precedent and used what I would frankly call vague or indefinite phrasing to capture the voters of justices on both sides of the ideological aisle. Only Thomas dissented.
And yet once they read Kagan’s majority, six justices authored or joined concurring opinions, expressing close to opposite views as to what, exactly, the miscarriage of justice exception might reach. Gorsuch (a wild card, joined by Sotomayor and Jackson) wrote about various other situations he thinks Hunter might extend to (the entire guilty plea system?). In response, Kavanaugh (joined by Alito and Barrett) quickly circulated a one-paragraph responding concurrence, stating that he “respectfully disagrees” with Gorsuch. Kagan wrote almost nothing in response to the concurrences, and the chief stayed in silent agreement.
Undoubtedly Hunter will generate much lower court variety. But Kagan’s vague (or more charitably, high-level and abstract) language kept eight voters together. The justice then succeeded in wending her way through a very tricky field to a truly unprecedented liberal view, nailing down a firm precedent with conservative as well as liberal justices in tow. Kagan’s opinion for the court in Chatrie is another example of the chief’s confidence in her and her ability to keep a majority in line while navigating controversial waters. She stuck to precedent (including major ones written by Roberts and former Justice Antonin Scalia), while both Gorsuch in concurrence and Alito in dissent expressed unhappiness with it.
Finally, Kagan also got the assignment in two cases deciding against a defendant (Case and Abouammo). Even though – or perhaps because – these were unanimous, this may have been to to preserve the court’s unity against two criminal defendants.
Given all this, I think Kagan is now the “go to” justice for difficult criminal cases on the court’s docket.
What might we expect in the first criminal law argument of the term?
Next Tuesday, Oct. 13, the justices will hear oral arguments about the federal sentencing guidelines, in Beaird v. United States. The case asks what is the right amount of deference to give to commentary published by the U.S. Sentencing Commission – and lower courts sentencing hundreds of federal offenders every day need guidance. Everyone agrees that some adjustment to a 1993 decision on the topic, Stinson v. United States, is needed in light of a 2019 plurality decision in Kisor v. Wilkie. The tricky question is how to phrase it. The solicitor general suggests that much deference should still “frequently” be given, while the public defender advocates “no deference,” or at least that this occur “rarely.” An amicus appointed by the court (Anthony J. Dick, a former Alito clerk) argues for “authoritative” deference and strategically invokes Loper-Bright on the topic of deference to agency policies. Whether Loper-Bright supports Dick or not, it is a topic that almost certainly will attract attention from the chief justice (its author) and Gorsuch (its prime advocate).
So I think in Beiard the justices have an open field to try and construct a semantic description of deference that a majority can agree on. I don’t see any obvious pro-defense wild cards here – indeed, I am not sure there is really a pro- or anti-defense position here at all. Rather, I imagine the four wild card justices in the middle will try hard to find agreement.
Interestingly, Kisor, the precedent most directly on point – but issued with four competing opinions, before Loper-Bright, and before Barrett and Jackson were there – was written by Kagan. The fight in Kisor was about what is called Auer deference to agency rules; Kavanaugh’s diplomatic concurrence in Kisor suggested “rigorous scrutiny” that is “appropriately deferential,” too ungainly (vague) I think to be adopted as a rule for lower courts. Jackson, the only justice to have previously served on the Sentencing Commission, will surely have questions. Argument is likely to be lively and full of hypotheticals ranging beyond the specific case at issue. Maybe a result will seem easy, but as in Hunter the justices are likely to disagree on the details. If the chief is looking for an author to write carefully and with style, to hold a fissured majority together, Kagan is a strong candidate.
