The Supreme Court’s upcoming criminal cases

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

The Framers of our Constitution were, of course, all criminals. This is not often said, but it deserves frank recognition. The revolutionary founders were committing violent, treasonous acts against their government, the British monarchy. Announcing independence in 1776, the Framers declared that they had suffered a “long train of abuses” at the hands of the British criminal justice system. Thus much of the Bill of Rights provided for rights and guarantees for people subjected to criminal investigation or prosecution. The Fourth, Fifth, Sixth, and Eighth Amendments address criminal law directly, and the First, Second, and even the Third address criminal law issues by implication. As Professor David A. Strauss noted long ago, “protections for criminal defendants are arguably the dominant feature of the Bill of Rights.”

Criminal cases in the 2025-26 term

With this in mind, it is perhaps unsurprising that the Supreme Court’s next term, which begins on Oct. 6, has so many criminal cases. (Here is the court’s calendar for the term.) By my count, 15 of the 31 cases for which the court has already granted review are criminal law and related. (A full list appears at the end of this post – last month I explained what I count as criminal cases.)

Indeed, of the 10 cases set for oral argument in the first two weeks (referred to as “the October sitting”), five – half the docket – are criminal cases. (Some court followers may not know that the court generally holds oral arguments only two weeks a month, in only the first seven months of the term. They usually hear arguments in only two cases per day, and on only three days a week. My previous column explained why some might say that “the justices have the easiest job in the judiciary.”)

Of the 15 criminal law cases granted review so far (with more to come after the court’s “long conference” on Sept. 29), six are what might be called “pure” criminal law (as described below). Five of the cases directly present constitutional law questions. Another two address criminal sentencing, two more address habeas corpus issues, and two others raise immigration matters. A final three cases are what I call “related to” criminal law, meaning that their criminal law connections might not seem immediately obvious, but those who practice or administer criminal law might still want to know about them.

The full list is at the end; I first offer some introductory thoughts, and then a brief discussion of three cases that stand out in particular.

Five early-term cases involve pure criminal constitutional issues.

The court’s oral argument calendar for October shows that fully 50% of the ten cases to be argued will present what I call “pure” issues of constitutional criminal law: the Fourth Amendment’s protection from unreasonable searches (Case v. Montana, Oct. 15); the Fifth Amendment’s double jeopardy prohibition (Barrett v. United States, Oct. 7); the Sixth Amendment right to counsel (Villarreal v. Texas, Oct. 6); and protections found in Article I of the Constitution for the “Privilege of the Writ of Habeas Corpus” (Bowe v. United States, Oct. 14) and against ex post facto punishments (Ellingburg v. United States, Oct. 14). That’s a pretty packed schedule for those who want to listen to criminal law arguments (there is still no video, despite its use in other courts). The October sitting will provide a mouth-watering constitutional smorgasbord for Supreme Court epicures.

Although SCOTUS nerds like me find something interesting in almost every case, detailing 15 cases would be too much for one post. Here’s a closer look at three particularly interesting ones.

The term opens by focusing on the Sixth Amendment’s right to “Assistance of Counsel.”

The very first oral argument of the term should feature some fun hypotheticals, and prove to be extremely important for the conduct of criminal trials. Villarreal v. Texas presents an exercise in constitutional line-drawing between two Sixth Amendment precedents. When a trial court recesses for the day while a criminal defendant is testifying, may a trial court bar defense counsel and their client from discussing the defendant’s testimony overnight? One might think that the “assistance of counsel” would be particularly important at such a stage. However, two precedents, decided by two very different alignments of justices 12 years apart, point in opposite directions.

Fifty years ago, an 8-0 court ruled in the 1976 case of Geders v. United States that an overnight no-discussion order between the defendant’s direct and cross-examination unconstitutionally interfered with the defendant’s Sixth Amendment right to counsel. But 13 years (and three new Reagan-appointed justices) later, the court ruled (in Perry v. Leeke, 1989, 6-3) that a no-discussion order during a 15-minute trial break in the defendant’s testimony did not. Perry’s conclusion appeared to be limited to a recess for “a good reason … of a few minutes.” But it also suggested that Geders might protect attorney-client discussions only of “matters that go beyond the content of the defendant’s own testimony.”

In Villarreal, set as the first case to be argued on October 6, the Texas Court of Criminal Appeals upheld a trial judge’s (somewhat muddled) order that appeared to permit overnight discussion of “everything except [Villarreal’s] ongoing testimony” (my emphasis added). Undoubtedly Justice Thurgood Marshall, who joined the Geders majority and noted at the Perry argument that he had “tried a few cases,” would object to such a limit on attorney-client conversation. But Marshall was a dissenter in Perry, and the court in 2025 is – spoiler alert – an entirely different one than in 1976. Villarreal v. Texas will provide a fiery term-opening oral argument full of creative “what if” questions from the justices, and starkly different Sixth Amendment visions.

A Fourth Amendment case: what level of suspicion of an “emergency” must law enforcement have to enter a house without a warrant?

When William Trevor Case’s ex-girlfriend told the police that Case was threatening suicide, the police knew Case well and that he had tried to stimulate “suicide by cop” before. After waiting and debating for some 40 minutes outside Case’s house, officers entered, without attempting to get a warrant. The entry is what is at issue in this case; with many post-entry facts in play, Case was later convicted of assault of an officer after a motion to suppress evidence – found after the warrantless entry of his house – was denied. The Montana Supreme Court affirmed, 4-3.

The Supreme Court has stated, as in the 2006 case of Brigham City v. Stuart, that an “objectively reasonable basis” is required for warrantless “emergency aid” home entries. But does an “objectively reasonable basis” mean the same level of suspicion as “probable cause” that is required to get a search warrant? Or does some lesser degree of belief, say “reasonable suspicion” (akin to the standard required for a traffic stop), allow entry? Here is one way to conceive of the difference, although we will hear how the parties describe it at oral argument: Case’s claim appears to be that when they decided to enter his home, the officers were not firmly convinced that Case was going to kill himself (thus lacking probable cause), but they still suspected that he might (constituting reasonable suspicion).

The difference between “probable cause” and “reasonable suspicion” often seems vague and indeterminate, yet important criminal cases often turn on how judges later evaluate the distinction. In the 2021 case of Caniglia v. Strom, concurrences by Justices Samuel Alito and Brett Kavanaugh identified potential suicide and other “real world” situations as requiring further analysis. At argument on October 14 (and later), Case will require all members of the court to try to explain, more precisely if possible, what the Fourth Amendment requires in non-criminal home-entry situations.

November: A death penalty case asks who is intellectually disabled.

Hamm v. Smith, set for argument on Nov. 4, asks the court to specify more clearly how lower courts should analyze whether a capital defendant is so intellectually disabled that they may not be executed. Like all death penalty cases, Hamm involves an extensive factual and judicial record, as well as a thicket of complicated state statutes and lower court interpretations seeking to apply the deceptively simple rule established in the 2002 case of Atkins v. Virginia. The court wrote its own question presented when it granted review: “Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.”

In Atkins, a 6-3 majority ruled that the Eighth Amendment’s prohibition of “cruel and unusual punishments” forbids the execution of a capital defendant who is intellectually disabled. The court noted in a footnote that mental retardation (the term used at the time) was “typically” applied to persons with an IQ of “approximately 70” or lower.

After multiple up-and-down state court proceedings, the Alabama Court of Criminal Appeals affirmed, long ago, that Smith was not intellectually disabled. However, in 2023, the U.S. Court of Appeals for the 11th Circuit affirmed a district court’s habeas judgment that the execution of Joseph Clifton Smith would violate Atkins. (Smith’s conviction and sentence for a brutal 1997 murder is not at issue in this term’s argument.) Smith’s five IQ tests, scored between 72 and 78, put an IQ of 69 within the standard range of error of the lowest score (meaning that his IQ could be as low as 69). 

After a record number of re-listings over ten months, in November 2024, the Supreme Court sent the case back to the 11th Circuit for clarification of whether it had employed a single “standard error” rule (based solely on Smith’s lowest IQ score) or a “holistic approach that considers the relevant evidence, including as appropriate any relevant expert testimony.” The 11th Circuit quickly endorsed the latter, saying “the district court did not clearly err in its factual findings that Smith suffered from significantly subaverage intellectual function, that he had significant and substantial deficits in adaptive behavior, and that he manifested those qualities before he turned 18.” The 11th Circuit explained that this multi-factor analysis was consistent with the 2014 Supreme Court decision in Hall v. Florida, in which the a 5-4 majority said that “[i]ntellectual disability is a condition, not a number,” and that “[i]t is not sound to view a single factor as dispositive.” 

However, three of the dissenters in Hall were Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. (Thomas was also a dissenter in Atkins.) And the record number of re-listings of the Hamm case for discussion among the justices over ten months last year suggests deep disagreements about this entire area of death penalty law, not just multiple IQ tests. In the Supreme Court, 14  state attorneys general have argued that the 11th Circuit’s decision undermines “States’ sovereignty over criminal law.” The state has also asked the court to overrule Hall. The oral argument on Nov. 4 may reveal how deeply the disagreements go, and suggest how much of existing precedent the current court is open to re-examining.

OK, here’s the list: 15 “criminal law and related” cases (so far) for the 2025-26 term

The case list below is divided topically. Each case name is hyperlinked to its SCOTUSblog page, followed by its scheduled oral argument date (if available) and a brief description of the issue presented. The descriptions are my own, and I am well aware that Supreme Court cases are often more nuanced or complex than brief soundbite descriptions can adequately capture.

Pure criminal law:

     Villarreal v. Texas (Oct. 6): Sixth Amendment right to assistance of counsel; order barring attorney-client discussion of defendant’s testimony during overnight recess.

     Barrett v. United States (Oct. 7): Does the Fifth Amendment’s double jeopardy clause permit two (consecutive) sentences for the same federal robbery act that violates two criminal provisions?

     Ellingburg v. United States (Oct. 14): Whether restitution ordered in a criminal case under the Mandatory Victim Restitution Act is “punishment” subject to the ex post facto clause.

     Case v. Montana (Oct. 15): Fourth Amendment; does a warrantless entry into a home upon report of a possible suicide (the “emergency aid exception”) require probable cause or some lesser degree of suspicion?

     Rico v. United States (Nov. 3): Whether the “fugitive tolling” doctrine allows revocation of a term of supervised release that expired while the defendant was absconded.

     Hamm v. Smith (Nov. 4): Eighth Amendment; whether and how courts may consider multiple IQ tests to apply the Atkins prohibition on execution of the intellectually disabled.

Sentencing cases:

     Fernandez v. United States (Nov. 12): May “extraordinary and compelling reasons” to justify reduction of a federal criminal sentence include reasons that could be alleged for a separate habeas corpus attack on the sentence (such as actual innocence)?

     Rutherford v. United States (consolidated with Carter v. United States) (also Nov. 12): May “extraordinary and compelling reasons” to justify reduction of a federal criminal sentence include disparities created by the First Step Act’s prospective ambit?

Habeas corpus cases (in addition to Fernandez, above).

     Bowe v. United States (Oct. 14): How do federal “successive application” statutory provisions apply to motions to vacate filed under 28 U.S.C. § 2255, possibly barring Supreme Court review?

     Olivier v. City of Brandon, Mississippi (not yet scheduled): Does Heck v. Humphrey bar a § 1983 challenge seeking prospective relief against an allegedly unconstitutional (on religious freedom grounds) criminal statute, when the challenger has already been convicted but no habeas relief was available?

Immigration cases:

     The GEO Group v. Menocal (Nov.10): Whether a private immigration detention facility, under contract with the federal government, that is denied a sovereign immunity defense may appeal immediately under the collateral order doctrine.

     Urias-Orellana v. Bondi (not yet scheduled): Whether and how a federal court should defer to findings by the Bureau of Immigration Appeals findings against (or for?) a “persecution” claim.

Otherwise related to criminal law:

     Landor v. Louisiana Dept. of Corrections and Public Safety (Nov. 10): Are money damages available against individual government officials, under the Religious Land Use and Institutionalized Persons Act? The case was brought by a Rastafarian inmate whose head was forcibly shaved.

     FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. (not yet scheduled): Is there a private right of action under the Investment Company Act [somewhat akin to a financial fraud case]?

     First Choice Women’s Resource Centers, Inc. v. Platkin (not yet scheduled): May a state attorney general’s investigatory subpoena be challenged directly in federal court when it raises a First Amendment religious freedom issue?