Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court
58 Pages Posted: 12 Jun 2016 Last revised: 24 Jun 2016
Date Written: June 10, 2016
This article analyzes the U.S. Supreme Court's institutional shift over the past four decades toward a prosecutorial perspective. It does so along three dimensions: (1) the rise of antejudicial prosecutorial experience among the Court's membership; (2) the rise of plea bargaining as a prosecutorial tool for shaping the Court's law-making agenda; and, in the greatest depth, (3) the rise of a sharp advocacy gap between criminal defendants and the rest of the increasingly expert Supreme Court bar, including expert advocates for the prosecution. The article critiques this tilt from both a procedural justice and a substantive perspective, and proposes two institutional interventions the Supreme Court itself could take to address the issue. First, it suggests that the Court establish a standing committee within its bar to develop Supreme Court advocacy expertise among the criminal defense bar -- and that it empower that committee to appoint amici curiae to argue alongside criminal defendants in any case in which the U.S. Solicitor General argues in opposition. Second, it suggests that the Court explore amendments to the Federal Rules of Criminal Procedure that would deem constitutional claims presumptively preserved for appellate review even in cases resolved by pleas of guilt.
Keywords: U.S. Supreme Court, Criminal Procedure, Adjudication, Judiciary, Judicial Experience, Supreme Court Bar, Oral Advocacy, Prosecutorial Oversight, Solicitor General, Appellate Litigation, Plea Bargaining
Suggested Citation: Suggested Citation