Criminal Justice

Abstract

As Professor Kmiec has said-and Dean Starr before him-the big news in the last year is not this case or that one but the change of personnel. Let's start with Justice Alito since you've heard a little bit more about Chief Justice Roberts.

Justice Alito is a former prosecutor. He brings to the Court not only more prosecutorial experience than any of the other members of this Court, or the Court in recent history, but perhaps more prosecutorial experience than any previous Justice in U.S. Supreme Court history.

How will that play out? What will it mean? Let's take one case where perhaps Justice Alito's vote was decisive last Term. It's the case of Hudson v. Michigan. The reason that I say that perhaps Justice Alito's vote may have been decisive is that Hudson is a five-to-four case in which Justice Alito sided with the State of Michigan. It was a case that was initially heard when Justice O'Connor was still in the Court, and it's quite possible that she had tentatively decided against the State of Michigan and for the criminal defendant in the case.

So here's a situation where, at least if you read certain tea leaves, it seems that the shift from Justice O'Connor to Justice Alito may have made a difference on the Court.