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Justice Jackson Can Shift High Court’s Crime Docket Post Breyer

Oct. 14, 2022, 8:45 AM

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government. But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table—and to conference—and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The case involves Dayonta McClinton, who was convicted of robbing an Indianapolis pharmacy with others in 2015. He was acquitted of killing one of the robbers who refused to share the spoils worth about $68 but a federal judge still took the killing into account and sentenced McClinton to 19 years. The judge determined that McClinton committed the killing by using a lower standard than the beyond-a-reasonable-doubt test used by juries.

Without the murder, the sentencing guidelines called for a term closer to five years.

The acquitted-conduct issue has already generated an unusual coalition when the court rejected a 2014 petition. Justices Ruth Bader Ginsburg and Clarence Thomas joined Justice Antonin Scalia’s dissent that said the court should have granted review to “put an end to the unbroken string of cases disregarding the Sixth Amendment.”

The trio was notable not just for who joined but who didn’t—namely Justice Sonia Sotomayor, the court’s strongest voice for criminal defendants.

That may have been because she and Justice Elena Kagan “were disinclined to vote for cert. because they were worried Breyer would go the wrong way,” said Ohio State law professor Douglas Berman. He filed an amicus brief urging the justices to grant review in McClinton’s case.

A lawyer for McClinton agreed that Breyer may have been holding up review. “It may be that there were four votes to grant but that people didn’t want to grant when there weren’t five votes to go that way on the merits,” said John Elwood, head of Arnold & Porter’s appellate and Supreme Court practice.

Elwood said that Breyer was “comfortable with sentencing based on judicial factfinding” and that “the odds are reasonably good that Jackson is more skeptical of judicial factfinding than Justice Breyer, or at least open to the idea that it may be unconstitutional.”

His firm’s petition for McClinton cites opinions by Justices Brett Kavanaugh and Neil Gorsuch from their time as federal appeals court judges that questioned sentencing based on judicial factfinding.

The Justice Department waived its response to McClinton’s petition in June—before Jackson joined the Supreme Court—which could have led to the court denying review without further litigation.

But the court requested a response in July, a move that Elwood said could show Jackson’s impact already. The court doesn’t specify which justices request responses. DOJ’s response is currently due Oct. 28, so if there are four votes for review, the court could decide to take the case up for argument later this term.

A diverse set of groups—including defense lawyers, former judges, the Cato Institute, and the Koch-backed Americans for Prosperity Foundation—are all urging the court to consider the issue.

Of the issue’s wide appeal, AFP’s Jeremiah Mosteller said it’s “just one of those things that, once people understand that it exists, regardless of their political persuasion or their background, they legitimately cannot understand how a judge can overrule a jury’s acquittal.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at