Professor Joel Johnson, "Cert Alert: Supreme Court Cases of Interest" Fall 2025 -- ABA Criminal Justice Magazine

Professor Joel S. Johnson's latest installment of his quarterly column, "Cert Alert: Supreme Court Cases of Interest," has been published in the Fall 2025 edition of the ABA Criminal Justice Magazine. The column discusses pending criminal cases before the Supreme Court.

From Supreme Court Cases of Interest:

Last term’s criminal docket was dominated—yet again—by fairly technical questions of federal statutory interpretation. The cases on the criminal docket for the coming term promise a richer constitutional flavor. Six of the nine criminal law matters currently on the merits docket raise issues concerning the Fourth, Fifth, Sixth, and Eighth Amendments or the Ex Post Facto Clause.

Just as noteworthy is where those disputes arose. The Court has already granted certiorari in two criminal cases that arrived by way of state courts—Case v. Montana and Villarreal v. Texas. That may sound modest, but it already bests last term, when the Court heard no direct criminal appeals from state courts—a decline documented by Professor Steve Vladeck. See Stephen Vladeck, STATE COURT REPORT (Dec. 17, 2024).

Notably, Case presents a Fourth Amendment issue in a classic motion-to-suppress posture for the first time since the Court’s 2021 decision in Lange v. California. In the interim, the Court’s Fourth Amendment jurisprudence has mostly played out in the context of civil constitutional tort litigation. Case concerns the contours of the emergency-aid exception to the warrant requirement. The Court’s decision may shed light on how the newer Justices view the exclusionary rule.

Ellingburg v. United States may prove to be one of the term’s sleeper cases. It asks the Court to resolve whether restitution imposed under the Mandatory Victim Restitution Act is “penal” for purposes of the Ex Post Facto Clause. Resolution of that issue will give Justice Gorsuch an opportunity to elaborate on the broad conception of “penal laws” and “punishment” that he has expressed in other contexts. Earlier this year, for example, he dissented from the denial of certiorari in Rimlawi v. United States, arguing that restitution is “undeniably punitive” and therefore subject to the Sixth Amendment jury right. If Justice Gorsuch can find four other votes, Ellingburg could broaden the definition of “penal” in ways that reverberate even beyond the context of the Ex Post Facto Clause.

The merits docket for next term is still taking shape. With conferences scheduled throughout the fall and into the new year, expect several additional criminal matters to join the current roster by January. Keep a close eye on the orders list.

The complete article may be found at American Bar Association(registration required)