Craft & Sheppard’s Supreme Court Review

Numbers of Cases and First Decisions

The first Monday in October begets a new Supreme Court term. The 2008 term began October 6, 2008. By the end of June 2009, the Court will have issued between 75 and 80 formal “signed opinions”. In the latest reporting period, 8,851 separate claimants asked the High Court to review their cases and hear their appeals, typically by filing a petition for certiorari. The overwhelming majority of these petitions–7,132–are filed by or for federal and state prisoners, most of whom are pro se or do not have lawyers. The High Court will not review many prisoner-written petitions, but nonetheless will likely decide about 20-25 decisions affecting criminal law and criminal defendants. The remaining 1,719 filings will ask the Court to review civil disputes. The Court has discretion to choose which appeals to hear, and each opinion carries consequences.

Early in the term, the Court issued two short, but important, opinions. First, in Brunner v. Ohio Republican Party, a federal court granted a temporary restraining order (TRO) directing the Ohio Secretary of State to update Ohio’s voter registration database to comply with a federal law, the 2002 Help America Vote Act (HAVA). The Ohio Secretary of State is the Ohio official charged with supervising elections in that state. The Court, however, vacated or set aside the TRO; federal law does not permit a private citizen to enforce HAVA. To vacate the TRO, the Court heard and considered an interlocutory application, a rarity in Supreme Court practice. The Court prudently avoided becoming embroiled in an election dispute prior to the presidential election.

Second, the high Court decided Moore v. U.S. By way of background, the federal sentencing guidelines are the starting point for computing a prisoner’s sentence when he is convicted or pleads guilty to committing a federal crime. Under the sentencing guidelines, sentences for possessing crack with intent to distribute or resale are far harsher than sentences for possessing powdered cocaine with intent to distribute or resale. Last year, the high Court decided Kimbrough v. U.S., 128 S. Ct. 558 (2007), and upheld a trial judge’s setting a sentence below that set in the sentencing guidelines. Here, a trial judge refused to consider whether the defendant, convicted of possessing crack, should receive a sentence below the sentencing guidelines. In Moore v. U.S., the High Court ruled that the trial judge should consider resentencing the defendant. The sentencing guidelines’ laudable purpose is to equalize punishments for federal crimes, wherever they are committed. Critics charge that the one-size-fits-all approach failed to account for differences between offenders, and that the disparity between punishment for crack and powdered cocaine produced draconian effects and smacked of racism.