Professor Joel Johnson, The New Criminal Docket and the Clemency Court -- Yale Law Journal (forthcoming)

Professor Joel S. Johnson's article, The New Criminal Docket and the Clemency Court, will be published in the Yale Law Journal. The article explores the Supreme Court's curation and resolution of cases on its criminal docket in recent years.

Abstract of The New Criminal Docket and the Clemency Court:

For decades, the Supreme Court treated its merits docket as a platform for deciding landmark decisions to manage and reform the criminal legal system through broad rules of constitutional law.  Not anymore. The Court now picks cases with issues of limited significance and resolves them on narrow grounds, dispensing relief to small sets of beneficiaries without more broadly altering the system’s machinery. The contemporary Court is functioning like a Clemency Court.

This Article explores the Court’s criminal docket through the Clemency Court lens, based on a content analysis of all ninety merits cases on the criminal docket over the past five terms. The docket is filled with issues that are narrow in scope and disproportionately affect certain types of litigants, often those with political or social clout. In resolving these narrow issues, the Court seldom ventures beyond what is necessary to decide the disputes before it, leaving larger questions about constitutional and statutory methodology for another day. The fortunate few who capture the Court’s attention receive some relief. But the vast majority processed through the criminal legal system see little benefit.  Nor do lower courts receive much new guidance.

The Clemency Court approach carries significant implications.  When relief is dispensed as a matter of discretion for a few rather than a right guaranteed to all, both the Court’s legitimacy and the rule of law suffer.  Doctrine stagnates.  And the vertical and horizontal separation of powers are realigned, leaving more power in the hands of local authorities and the other federal branches.  In addition, the Court’s special solicitude for high-profile or powerful individuals results in neglect of issues that affect millions of ordinary people, with traditionally disadvantaged groups disproportionately bearing the cost.