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Replacing Justice Kennedy With a More Conservative Justice

Some Supreme Court successions produce major changes in the ideological makeup of the Court, and some do not.  Justice Gorsuch is different from Justice Scalia, of course, but overall his votes on the results of criminal cases do not seem too much different from where Justice Scalia would have voted.  In contrast, Justice Thomas succeeding Justice Marshall in 1991 was a jurisprudential earthquake.  Two years later, we had a shift back in the other direction, though not as great, when Justice Ginsburg succeeded Justice White.

In all likelihood, President Trump will nominate someone more conservative to succeed Justice Kennedy, who has occupied the Court's middle in recent years.  To take a peek at the future, let's take a stroll down What If Road in the recent past.  How would criminal cases have come out differently in recent terms if someone more conservative had been in Justice Kennedy's chair?
SCOTUSblog's valuable Stat Packs identify the 5-4 decisions.  The cases that would likely have come out differently are those where Justice Kennedy was in the majority with the conservative Justices in the dissent.  How many such cases are there, and are they the important ones?

October 2017:  In the term just ended, zero difference.  There are no criminal cases decided 5-4 with a liberals + Kennedy majority.  The big criminal 5-4 of the term was the cell phone case, Carpenter, and Justice Kennedy was in the dissent.  Chief Justice Roberts joined the liberals to make 5.

October 2016:  The previous year, several cases but not biggies.  The liberals + Kennedy 5-4s include Pena-Rodriguez, poking a hole in the time-honored rule against jurors impeaching their verdicts, Moore, disapproving the way the Texas Court of Criminal Appeals evaluated intellectual disability claims but at least arguably on narrow grounds, and McWilliams, ducking the main question on appointment of mental health experts and deciding on more case-specific grounds.

October 2015Williams v. Pennsylvania, on whether a state supreme court decision had to be reversed because the state chief justice did not recuse himself even though the case was prosecuted while he was district attorney.  This is arguably important as a matter of federalism, but this is not a commonly occurring fact pattern.

October 2014Brumfield, another case scrutinizing state-court adjudication of intellectual disability claims in capital cases, Kingsley, a case on civil suits for force against inmates, and LA v. Patel, on police inspection of hotel registries.

October 2013Hall v. Florida, the case in which the Court goes beyond laying down the general rule that intellectually disabled persons cannot be executed (Atkins v. Virginia) and gets into scrutinizing how the state courts go about making that determination.  Also Abramski v. United States on materiality of misrepresentations made while buying a gun, particularly being a "straw purchaser."

Overall, that's not a great deal of difference in five terms.  Of course, our little exercise may not be capturing the whole story.  Perhaps there are cases that the conservative Justices did not vote to take up because they knew they did not have five votes for the result they wanted.

I do not expect that the Kennedy-Whomever succession will come close on the Richter Scale to the Marshall-Thomas succession on matters of criminal law.  Most likely it will be on the same magnitude as the White-Ginsburg succession, but in the other direction.

I do think that it will prevent some detrimental trends from going any further.  We can probably stop further micromanagement of the way state courts decide who is intellectually disabled, for example.  With a little bit of luck [Alfie Doolittle sound bite here] we can stop the creation of any further categorical exclusions from the death penalty.  We might do some more damage control on the Fourth Amendment exclusionary rule.  I am not expecting, though, that outright overruling of any major criminal law precedents is imminent.

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