Recent Legal Developments: Criminal Justice Decisions of the United States Supreme Court, 2008 Term

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During its 2008 term, the U.S. Supreme Court decided a total of 79 cases, issuing 75 signed opinions and 4 summary reversals. A total of 31 cases (39%) involved a criminal justice-related issue. Although a number of these decisions will have only a slight impact on the daily administration of justice, there were a number of significant decisions involving criminal justice, including decisions involving search and seizure, interrogations, and sentencing.

Justice Kennedy remains the crucial swing vote on a court that is often divided 4–4. In the 2006 term, Justice Kennedy was in the majority in 100% (24 of 24) of the cases decided by a 5–4 margin. In the 2007 term, he was in the majority in 8 of the 12 cases decided by a 5–4 vote. In the 2008 term, Justice Kennedy was in the majority in 18 of the 23 cases (78%) decided by a 5–4 vote and in the majority in 73 (92%) of all cases. Clearly, where Justice Kennedy goes, the Court is likely to follow.

Clear ideological divisions exist on the Court. Certain justices are consistently aligned with some justices and not with others. For instance, Chief Justice Roberts and Justice Alito agreed either in whole or in part in 92% of all cases, whereas on the other end of the ideological spectrum, Justices Stevens, Ginsberg, and Souter agreed either in whole or in part in 86% of all cases. Justice Stevens cast more solo dissenting votes (28) than any other justice. Sixteen (70%) of the 5–4 decisions broke down according to predictable ideological lines, with Justices Scalia, Thomas, Alito, Kennedy, and Chief Justice Roberts on the rights and Justices Stevens, Souter, Ginsberg, and Breyer on the left. Cases in which justices broke ranks included cases involving sentencing issues (the Apprendi and Blakely-related cases) and cases involving the Confrontation Clause.

I present below a summary and analysis of the most significant decisions involving criminal justice. Space limitations prevent a discussion of every criminal justice-related decision. The cases are divided, somewhat roughly, into categories.