The US Supreme Court is back in action with oral arguments this week after nearly a month off, and today’s action starts with this lengthy new order list. Running 58 pages, there are many interesting elements to this order list that should intrigue criminal justice fans, and I will highlight here items first catching my eye related to the Second, Fourth and Sixth Amendment:
Second Amendment: On the very first page of today’s order list, the Supreme Court addresses two Eleventh Circuit criminal cases (Whitaker and Rambo) that involved constitutional challenges to the federal prohibition of gun possession by felons in this way: “The judgments are vacated, and the cases are remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of United States v. Rahimi, 602 U.S. 680 (2024).” This would not be a big deal, except both Whitaker and Rambo were resolved by the Eleventh Circuit after the Supreme Court’s Rahimi ruling; the Eleventh Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a Second Amendment challenge to the federal felon-in-possesion charge. As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine — or at least should or may be read as undermining — any and all pre-Rehimi precedents that categorically foreclose a Second Amednment challenge to broad felon-in-possession laws.
Fourth Amendment: Over the last nine pages of today’s order list, Justice Sotomayer has an extended statement regarding the denial of cert, joined by Justice Gorsuch, that reinforces my inkling that an originalist approach to criminal procedure rights may often provide more protections to individuals than some existing precedent (see prior posts here and here and here on the topic). In Gonzales v. US, another case from the Eleventh Circuit, Justice Sotomayor starts her statement this way:
Founding-era common law gave officers no authority to make an “arrest without a warrant, for a mere misdemeanor not committed in [their] presence.” Bad Elk v. United States, 177 U.S. 529, 534–535 (1900) (collecting sources). This petition asks the Court to decide whether the Fourth Amendment incorporates that “in-the-presence” limitation on warrantless misdemeanor arrests. There is reason to think it might. After all, the in-the-presence requirement existed in some form at the founding. Ibid. This Court has often held, moreover, that the Fourth...
