The Calm Before the Storm? Selected Criminal-Law Cases in the Supreme Court’s 2016-2017 Term

Last year’s review was titled One Term, Two Courts, and it noted some of the differences in the Court’s decision making before and after Justice Antonin Scalia’s passing.1 Justice Scalia’s replacement, Justice Neil Gorsuch, was sworn in on April 10, 2017, too late to have an impact on the criminal side of the 2016-2017 Term’s ledger. He participated in only three of the twenty-two cases we discuss here,2 and none of his votes was decisive. This was one Term, one Court. Two characteristics mark the Term.

One is a light criminal law docket (with some significant rulings, but no blockbusters). The other is a relatively high degree of consensus— a high percentage of unanimous opinions—as well as fewer merits cases determined by a single vote than in the five previous Terms with a full Court.3 The October 2017 term may well be different.