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Criminal Justice Decisions of the United States Supreme Court, 2007 Ter
Criminal Justice Review (2008)
  • Craig Hemmens, Boise State University

During its 2007 term, the United States Supreme Court decided a total of 71 cases, issuing 67 signed opinions. This is the lowest number of cases decided in more than 50 years. Of these, 24 (33%) dealt primarily with a criminal justice-related issue. Although a number of these decisions will have only a slight impact on the daily administration of justice, there were a number of significant decisions involving criminal justice, including decisions involving gun control, search and seizure, sentencing, and corrections.

Thirty percent (21 of 71) of the Court’s decisions were unanimous, whereas another 26 cases (37%) were decided by at least a 7 to 2 vote. A total of 17% (12 of 71) of the Court’s decisions were decided by a narrow 5 to 4 margin. This was a significant decrease in 5 to 4 decisions from the 2006 term, when 33% of the decisions were decided by a 5 to 4 margin. Although these numbers suggest that the Court may have retreated from the contentiousness that marked the 2006 term, it should be noted that the number of unanimous decisions was actually down from the 2006 term, and there were still several opinions where the dissenting justices were extremely critical of the majority. Justice Scalia suggested that the decision allowing Guantanamo detainees access to courts “will almost certainly cause more Americans to be killed” and that the dissenters’ views in the gun control case were “worthy of a mad hatter.” Justice Stevens responded by characterizing Justice Scalia’s argument in the gun control case as “feeble.”

In the 2006 term, Justice Kennedy emerged as the crucial swing vote on a court that is often divided 4 to 4. In the 2006 term, he was in the majority in 100% (24 of 24) of the cases decided by a 5 to 4 margin and in the majority in 97% of all the decisions. This year was a bit different, with Justice Kennedy in the majority in 8 of the 12 cases decided by a 5 to 4 vote and in the minority in 10 decisions. Replacing him as the justice most frequently in the majority was none other than Chief Justice Roberts, who was in the minority in only 7 decisions, although 5 of those were 5 to 4 decisions.

Clear ideological divisions exist on the Court. Certain justices are consistently aligned with some justices, and not with others. For instance, Chief Justice Roberts and Justice Scalia agreed either in whole or in part in 88% of all cases, while on the other end of the ideological spectrum, Justices Souter and Ginsberg agreed either in whole or in part in 87% of all cases. Justice Thomas was in agreement with other members of the Court less than any other justice, and cast more solo dissenting votes (4) than any other justice. Most of the 5 to 4 decisions broke down according to predictable ideological lines, with the most conservative justices (Justices Scalia and Thomas) being joined by the two newest members of the court (Justice Alito and Chief Justice Roberts) and Justice Kennedy.

Of the 24 criminal justice-related decisions, 12 dealt with statutory definitions or sentencing guidelines, whereas 7 others involved procedural issues. The other 5 involved constitutional issues. Slightly over half of the decisions favored the defendant. The justices upheld the authority of federal judges to depart from federal sentencing guidelines in crack cocaine cases (critics of the federal sentencing guidelines have long decried the different sentences for possession of crack and powder cocaine) and determined that the death penalty was not appropriate for child rape. The prosecutors also won some big victories. The Court upheld lethal injection as a means of execution and determined that the Fourth Amendment allows police to arrest a person, even if state law prohibits the arrest, and to search that person incident to arrest.

Several cases dealt with the War on Terror and the rights of individuals detained by the government. Although these decisions involved issues beyond criminal justice, they nonetheless clarify the centrality of individual rights such as habeas corpus. In another rebuke of the Bush administration’s policy of detaining so-called enemy combatants, the Court ruled that the detainees in Guantanamo Bay have the right to seek a writ of habeas corpus.

Five of the criminal justice-related decisions were decided by a 5 to 4 vote. Two of these, the case involving Guantanamo Bay detainees and the case involving the death penalty for child rape, were authored by Justice Kennedy and subject to withering criticism from Justice Scalia. Justice Ginsburg voted for the defendant most frequently, in 18 of the 24 decisions. Justice Alito voted for the defendant least often, in only 6 of the 24 cases. I present below a summary and analysis of the significant decisions involving criminal justice. The cases are divided, roughly, into categories.

Publication Date
December, 2008
Citation Information
Craig Hemmens. "Criminal Justice Decisions of the United States Supreme Court, 2007 Ter" Criminal Justice Review Vol. 33 Iss. 4 (2008)
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