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While all eyes are on what seem like inevitable Supreme Court election law “emergency” petitions, it may be comforting to realize that the regular business of the Supreme Court still goes on. Argument calendars released months ago show five criminal law and related cases set for argument in November. Below are some quick summaries of them. But first, an announcement and one more quick look at last term.
My ABA “Annual Review of the Supreme Court’s Term: Criminal Cases”
For some 30 years I have written and the American Bar Association has published an “Annual Review of the Supreme Court’s Term: Criminal Cases” for the prior term. This is a booklet of manageable size for persons interested in a complete picture of the hundreds of pages the justices write every year on topics and cases related to criminal law. That’s also what this regular SCOTUSblog column aims to do – but the review provides a lot more detail. This effort – and believe me, it takes hours to compile – is a fun and (I hope) useful part of my pro bono work.
This year’s booklet will be published here on the ABA Criminal Justice Section‘s website next week. It is downloadable, and while I hold the copyright, anyone can use and distribute it. Summaries of 45 merits decisions and 26 separate writings by justices on the orders docket last term are included, as well as 14 criminal law and related cases granted for argument (so far) this term can be found in it as well. If you enjoy the booklet or have suggestions or criticisms, please let me know.
One last idea about October Term 2025
Before getting to the November sitting, here’s one interesting question from last term (more can be found in the booklet) that only recently occurred to me regarding two pairs of very different cases: Olivier v. City of Brandon versus Fernandez v. United States, and Hunter v. United States versus Clark v. Sweeney. At a high level of generality, is one case in each pair inconsistent with the other?
In brief, the court ruled in Fernandez that doubts about a prior conviction must be pursued in habeas, not the federal compassionate relief statute. Two months earlier in Olivier, however, the court ruled that a prospective challenge to a statute under which a person was previously convicted need not be pursued under habeas but instead can be filed under §1983 – even though that challenge might well “imply the invalidity of Olivier’s conviction.” Justice Elena Kagan wrote Olivier for a unanimous court, while Justice Amy Coney Barrett wrote Fernandez in an 8 to 1 result.
Similarly, in Clark v. Sweeney the court summarily reversed the U.S. Court of Appeals for the 4th Circuit for granting habeas relief on grounds not argued by the parties. But then, seven months later in the term in Hunter, the court ruled that a court of appeals can ignore a waiver of appeal if a “miscarriage of justice” is perceived – presumably even if that miscarriage has not been raised by the parties. The court emphasized that the independence, discretion, and “integrity” of the judiciary is at stake. Again, the votes were not close: Hunter (Kagan again) was 8-1, and Clark was an apparently unanimous summary reversal.
I wrote separately about both Clark and Hunter in columns last term, and now, the broad overview of all the decisions together occasioned by compiling my booklet led me to comparisons not apparent at the time. The pairings I have identified are not directly inconsistent, and cases can always be distinguished from each other on a granular level. But at some general level I think there are clear tensions between the animating philosophies in each pair. Those tensions reflect deep differences among the justices on fundamental liberty and fairness questions reflected in their approach to criminal law. More of which we turn to now.
Criminal law arguments in November
As indicated in my September column about upcoming criminal cases, December will be a “big” month, with AR-15 rifle possession and “forfeiture for a six-pack of beer” set for argument on Dec. 1 and 2. One criminal case, Beaird v. United States, has already been argued, presenting a relatively abstract question about how much deference to give to federal Sentencing Guidelines commentary notes. But November will be action-packed with five cases related to criminal law.
To be fair, none of the five cases raises what I would call a “pure” criminal law issue. Instead, there’s a variety of topics related to criminal law: habeas corpus rules (two cases), immigration, private causes of action for constitutional violations, and a purely civil procedure case arising from the firing of a supervisory assistant district attorney. But all present interesting legal issues for Supreme Court nerds like me (us?). Here are brief thumbnail sketches, in order of my own level of interest, not their respective argument dates.
Nielsen v. Watanabe (Nov. 9): For pure fireworks among the justices, the oral argument a week from Monday may be quite a show. But the result seems pretty much preordained: the court will either overrule an old civil rights precedent or once again limit it to its exact facts.
In 1970, the liberal Warren court ruled in Bivens v. Six Unknown Federal Narcotics Agents that individuals may sue federal officials directly under the constitution for damages caused if they have violated the Constitution, despite there being no statute that provides for such a “cause of action.” The vote was 5+1 to 3 and the decision has been controversial ever since. Multiple justices have said or suggested that without a congressional statute approving such claims, Bivens violates the constitutional separation of powers. Over time, and with changing personnel and views on the court, Bivens has thus repeatedly been limited, with the court declining to extend it to other circumstances over a dozen times.
In the instant case, Kekai Watanabe was attacked in a federal prison gang riot, and he alleges that he was denied medical care (with prison paramedic Francis Nielsen allegedly saying “stop being a cry baby”) and instead placed in solitary confinement for months. Only then was a serious spinal column injury identified and addressed. In 1980, the Supreme Court had extended Bivens (which had been based on the Fourth Amendment) to Eighth Amendment deliberate indifference claims. But that was the last time the court has ever looked favorably on Bivens. Nielsen now asks that Bivens be overruled, while the solicitor general suggests more mildly that the court might wait for a Fourth Amendment case to do the same.
At oral argument, I have no doubt that the three liberal justices will speak vigorously for Bivens and about the injustice of not allowing remedies for wrongs that violate the Bill of Rights. Chief Justice John Marshall’s famous invocation of the maxim “every right ... must have a remedy,” in Marbury v, Madison, will almost certainly be brought up. But just as vigorously, other justices will invoke the constitutional separation of powers and say that it is Congress, and not an unelected judiciary, that must write legislative protections for legal wrongs. The rhetorical and emotional heroics in this argument may rival those heard in voting, abortion, and birthright citizenship cases. Yet an anti-Bivens result seems virtually pre-ordained.
Maxwell v. Dinis (Nov. 2): When a federal prisoner is nearing the end of their term of imprisonment, they often can be transferred to a “halfway house,” which is just what it sounds like: the prisoner is confined to a group home setting at night, but free to leave during the day (with conditions) to look for employment, attend rehabilitation programs, and the like. The prisoner is still within the government’s control and supervision. But is a halfway house “custody” so that legal aspects of it – or in this case, alleged entitlement to it – can be challenged in a habeas corpus proceeding?
Richard Cooke has published on SCOTUSblog a nice account of the issues and briefed arguments. Maxwell, a mafia-affiliated fraudster who was sentenced in 2015 to 20 years in federal prison, filed a habeas petition claiming that he is entitled to “accelerated release” to a halfway house. The U.S. Court of Appeals for the 5th Circuit affirmed dismissal, ruling that habeas does not encompass a mere transfer between prison settings. As Cooke writes, the issue is “tricky” because prior cases have used various words to describe the reach of the federal habeas statute, including one (back in 1973) that habeas corpus can extend to a claim for “good conduct” time credits.The federal habeas statute explicitly also addresses prisoners “in custody,” but then lists specifics that don’t quite capture the claim here. And yet, a halfway house is certainly a “level of custody,” even if less restrictive than prison. Moreover, if Maxwell can’t use habeas, he does not appear to have any other judicial remedy available, because 42 U.S.C. §1983 (which authorizes people to sue state officials for violating a constitutional right) can’t be applied to federal officials (as noted in my description of Watanabe).
Neither the solicitor general nor Maxwell liked the 5th Circuit’s description of the proper habeas analysis. So a former law clerk of Justice Samuel Alito has been appointed to argue for affirmance here. Folks who love the intricacies of habeas law – imagine tax law mavens but in criminal law – will find the Maxwell arguments fascinating. But I imagine that the overall numbers of listeners who tune in for Monday’s live argument – has anyone ever filed a FOIA request to get those numbers? – won’t be very high.
Guerrero v. Johnson (Nov. 4):This is another case involving the intricacies of habeas law. And it is founded on a complicated procedural history, which is often the case in state criminal cases that finally make their way to the Supreme Court after multiple rounds of lower court litigation. Statutes that regulate habeas petitions filed by both federal and state prisoners permit successive habeas petitions to go forward, even if a prior habeas petition has been filed and denied, if the new petition raises a “new rule of constitutional law ... that was previously unavailable.” The question presented here seems relatively simple (after the procedural thicket is penetrated): is a rule “previously unavailable” when it was “practically unavailable” because the federal courts with jurisdiction over the prisoner would have automatically denied it?
Johnson is on death row in Texas and says he is intellectually disabled. In 2002, the Supreme Court ruled in Atkins v. Virginia that intellectually disabled persons are protected from execution under the Eighth Amendment’s cruel and unusual punishment ban. In 2015, the 5th Circuit denied a habeas petition Johnson had filed, but then in 2017 the Supreme Court issued a decision that Texas’ definition of intellectual disability was wrong. That is, a new psychiatric Diagnostic Manual allowed a person like Johnson to be declared intellectually disabled. Johnson then filed a successive habeas petition arguing that the change in Texas law created a “new rule” allowing an Atkins claim in his jurisdiction, which had been “previously unavailable” because circuit precedent had declared it meritless. In other words, Johnson says the 2002 Atkins rule was “unavailable” to him until 2017, because it would have been a waste of time, even frivolous, for him to file it prior to the change in the legal standard for Atkins protection. The 5th Circuit appears to have accepted that idea in the litigation leading to this case.
At oral argument next Wednesday, plain language textualists may have a field day. The Atkins ruling was clearly available prior to 2017, and Texas argues, quite simply, that its new constitutional rule was thus not “unavailable” when Johnson filed his first habeas petition. However, as Johnson contends, “available” is variously defined as “capable of being employed with advantage” or “usable.” He therefore argues that the Atkins rule was simply not usable – it was “previously unavailable” to him – until the legal standard for Atkins was made clear in 2017.
It thus turns out that the statutory phrase at issue here is not “plain,” but rather subject to different textual interpretations. Which means, I think, that the oral argument is likely to fall back (as is often the case in habeas cases) on the ideological orientations of various justices. It will be the kind of semantic battling and linguistic nitpicking that, although obviously important, can make the average American simply sick of lawyers.
Wassily v. Blanche (Nov. 30): Although this important immigration case will be argued on the first day of what insiders call “the December calendar,” it actually occurs on the last day of November, when some of us may still be eating Thanksgiving leftovers. Like Guerrero, the case involves the practical application of a simple phrase that literally might mean something else.
There are two noncitizen cases consolidated in one petition here, but discussing the lead respondent is enough for today. Tamer Wassily is a noncitizen who was granted asylum in the United States in 2000, and the applicable statute says that “any alien granted asylum” is eligible for adjustment to permanent resident status. The twist is that Wassily’s asylum status was terminated in 2004 following his conviction of a crime. The U.S. Court of Appeals for the 2nd Circuit ruled that “granted asylum” must mean “presently be granted asylum” and so it does not encompass applicants whose asylum status is later terminatedThe solicitor general agrees, contending that a “common-sense understanding” of the statute must mean that a person who was once granted asylum status which was later terminated cannot take advantage of that prior status. In opposition, Wassily takes the textual position that the unqualified statutory phrase “any alien granted asylum” describes him, and the statute says nothing about a later revocation.
One might cynically guess how this case will come out, but that is not what interests me most. Instead, note how the textualist arguments flip between Guerrero and Wassily. The government seeks a simple plain meaning result for “previously unavailable” in Guerrero but wants a non-textual “common-sense” interpretation in Wassily. There’s nothing wrong with using different arguments in different cases – that’s what law and lawyers are for (smiling emoji). But I sure wish these two cases were being argued on the same day: the combined debate between textualist and commonsense-driven justices and their ideologies likely switching in mere hours might make our heads spin.
Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia (Nov. 2):Finally, if you feel like Maxwell (described above) might be a bit of a snoozer, wait until the next argument the same day. I wouldn't include Younge here at all if she weren't a fired supervisory prosecutor suing her former district attorney office. According to Younge, she was fired about two weeks after telling her boss that she was pregnant. She sued on the basis of pregnancy discrimination, and only months later did the DA’s office invoke a statutory exemption to pregnancy discrimination statutes, something the office had not asserted in its answer to Younge’s complaint or earlier discovery maneuvers. The U.S. Court of Appeals for the 11th Circuit affirmed judgment for the DA’s office on that exception, saying there had been no prejudice to Younge from the DA’s delay in bringing up this affirmative defense. Other circuits have ruled that an affirmative defense simply cannot be raised that late – so we are off to the races.
Rodger Citron writes for this blog that the case “will quicken the pulse of civil procedure afficionados.” I’ll be calmer, listening with only one ear to hear how the DA’s attorney explains how they missed the statutory exemption, as well as wondering whether the number of listeners has gone up or down from the Maxwell argument immediately prior.
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[ H/T SCOTUSblog ]
