The past two terms of the Supreme Court have seen a significant leaning towards pro-defendant outcomes in criminal cases, defying expectations from a predominantly conservative bench. Since 2024, 70% of the Supreme Court’s criminal law decisions have swayed towards the defense, as indicated in a recent column by Rory Little. This trend raises intriguing questions about the roles individual justices play, particularly the elusive “wild card” justices, and how this dynamic could continue to affect judicial decisions.
The current Supreme Court landscape can be efficiently analyzed through the lens of a “wild card” theory. Justices Clarence Thomas and Samuel Alito hold steadfast conservative, pro-government views, while Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson are generally pro-defense. The remaining quartet—Chief Justice John Roberts, and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—serve as “wild cards,” whose decisions swing depending on the case specifics and arguments presented.
Justice Kavanaugh has been instrumental in shaping pro-defense decisions, authoring critical rulings such as Pitchford and Ellingburg. Similarly, Gorsuch authored Rico and Hemani, underlining his influence as a pivotal swing vote.
Elena Kagan has emerged as a key figure in the Court, particularly when it comes to authoring decisions in criminal law. She penned five pro-defense opinions in the recent term, including the significant Chatrie, dealing with Fourth Amendment issues. Kagan’s ability to weave a majority opinion and appeal across ideological lines makes her an essential justice for navigating complex legal terrain.
- Despite ideologically charged disputes, Kagan has artfully maintained court coherence in her rulings. Her opinion in Hunter united justices from diverse ideologies by exploiting common legal precedents and employing deliberately vague language to achieve consensus.
- Kagan’s significant output implies Chief Justice Roberts recognizes her unparalleled ability to unify a fractured bench, whether dealing with pro-defense rulings or straightforward cases like Case and Abouammo.
As the 2026-27 term progresses, the Supreme Court’s first significant criminal law case, Beaird v. United States, could further illuminate how the Court’s “wild card” dynamics, coupled with Kagan’s influence, will shape future rulings. Lawyers and analysts will be paying close attention to which justices become pivotal for particular arguments, particularly in such far-reaching cases dealing with federal sentencing guidelines.
It is conceivable that justices Roberts and Gorsuch, given their prior stances on deference to agency interpretations, as seen in Kisor v. Wilkie, could play significant roles in framing a majority opinion. Thus, Kagan remains a strong candidate to glue together a divided court around complex legal interpretations, sustaining her role as the “go to” justice in criminal law matters.