Upcoming criminal law arguments, and putting faith in life tenure

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.

Criminal case arguments in the Supreme Court next week

As previewed a month ago, the Supreme Court has already agreed to review 15 criminal law and related cases during the 2025-26 term. More will be added with grants decided at the Sept. 29 “long conference.” Two of these cases are scheduled for oral argument next week (and two more the week after); they bookend the two weeks of oral argument referred to as “the October sitting.” (The court is scheduled to hear oral arguments over only two weeks (six days) each month through April 2026. You can listen to oral arguments live at this link.)

         1. Villarreal v. Texas (Monday, Oct. 6): Is a criminal defendant’s Sixth Amendment right to the “Assistance of Counsel for his defense” violated when a trial judge prohibits the defendant and his lawyer from discussing the defendant’s testimony during an overnight recess that occurs while the defendant is on the stand? Precedents of the court pull in opposite directions. Texas has narrowed its position, while the U.S. solicitor general has intervened to argue for a broad bar. I expect the oral arguments to be quite lively – full of “first day of school” excitement – with creative hypotheticals posed from all perspectives.

         2. Barrett v. United States (Tuesday, Oct. 7): A complicated statutory and procedural history obscures a speedy summary of the constitutional double jeopardy question in this criminal sentencing case. But the U.S. solicitor general has conceded that the U.S. Court of Appeals for the 2nd Circuit erred in allowing separate cumulative sentences (totaling 30 years) for two offenses based on the same event (a robbery-killing). A former clerk to Justice Sonia Sotomayor (as well as for then-Judge Brett Kavanaugh) has been appointed to argue on behalf of the judgment below; while his brief is superlative and the defendant here does not evoke much sympathy, the win rate for such appointed “friends of the court” is not high.

         3. Ellingburg v. United States (Tuesday, Oct. 14): Another criminal sentencing, constitutional law case in which the U.S. solicitor general supports the defendant-petitioner (is that surprising to critics of the current SG?). The question is whether mandatory restitution constitutes criminal punishment such that the Constitution’s ex post facto clause would prohibit it. A prominent appellate advocate (and clerk to Justice Antonin Scalia and then-Judge Kavanaugh) has been appointed to argue as a “friend of the court,” and the defendant’s lawyer Lisa Blatt is always fun to hear. But the issue itself does not invoke fireworks (at least to me).

         4. Case v. Montana (Wednesday, Oct. 15): This Fourth Amendment case will be the last argument in the court’s October sitting. As previewed last month, Case asks the court to decide whether a probable cause standard governs warrantless home entries in non-criminal “emergency aid” situations, or if a lower “reasonable suspicion” standard suffices. Like most Fourth Amendment cases, the facts are nuanced: The police had some reason to believe William Case might die by suicide (which the parties assume would allow an emergency entry), but also some reason to believe that Case was not in danger but rather wanted to cause a violent “suicide by cop” scenario. Meanwhile, beyond the specific facts, dramatic hypotheticals raising other possible “emergency aid” contexts proliferate. The Montana Supreme Court split 4-3 on whether just a suspicion versus probable cause – that emergency aid is really needed –  should be required for police to enter. The Supreme Court has never been able to define with precision the difference between probable cause and reasonable suspicion. Law enforcement, judges, and, perhaps most importantly, your average homeowner would love to see more exactitude, in common understandable language, here.

The Comey indictment and placing hope in an independent judiciary

Meanwhile … on the evening of Sept. 26, former FBI Director James Comey was indicted. The irregular and unprecedented events leading to the indictment of Comey have been well-covered elsewhere. President Donald Trump appeared to direct his attorney general to indict Comey (and others), and installed his senior associate staff secretary, Lindsey Halligan, who has no prosecutorial experience, as U.S. Attorney for the Eastern District of Virginia to get that done. Halligan signed and allegedly presented the indictment to a grand jury by herself, over the objections of career prosecutors. Comey’s arraignment is scheduled for Oct. 9. The indictment itself presents two charges in only two brief paragraphs, which are so bare of detail that a bill of particulars seems mandated if the indictment is not dismissed as inadequate. The White House allegedly says that “this is just the beginning.”

What protections do Americans have if a president selects and directs who should be indicted for partisan, as it appears to many, reasons? We have learned in the past eight months that settled normal and historical precedents are not barriers to this president, and that the federal legislative branch is unwilling to intervene. What safeguards, if any, does our Constitution provide if a “unitary Executive” decides to exercise his federal powers beyond limits previously assumed to exist?

When asked questions like these (at recent Supreme Court panels and otherwise), this constitutional law professor finds himself invoking elementary principles that are often voiced but seldom considered in detail: the independence and life tenure of the federal judicial branch. And the importance of these principles in protecting the liberties of us all. So I return to ideas advanced by our constitutional framers.

The unitary executive theory is, or can be, limited by the judicial branch.

Article II of the Constitution begins by stating that “[t]he executive Power shall be vested in a President.” It is entirely plausible that the Framers intended by this phrase only to separate the executive from the legislative and judicial branches, and make clear that there would be a single person as president and not a “Council of Revision” as the “Virginia Plan” had proposed and Hamiton argued against in Federalist No. 70. But notably, some argue today, the Framers did not say “all” executive powers; and one might plausibly read the rest of Article II as detailing some of those powers and their limits, and the rest of the Constitution as providing an overall context for interpretation.

In more recent years, a broader and far more powerful constitutional theory has taken hold. The “unitary executive theory” is much debated, as it derives from implications, not purely the “plain meaning” of the text. Indeed, its own proponents disagree as to the specifics. But in general, the theory asserts that the president has complete (even unreviewable) authority over any function of the government that can be called “executive,” as opposed to legislative or judicial. Section 2 of Article II “enumerates” various powers of the president; running criminal prosecutions is not listed, and a narrow theory would argue that the enumeration excludes some other unmentioned powers. But the broad theory appears to dominate the views of Trump’s advisers, as well as a number of justices on the current Supreme Court.

The history and this debate will not be settled nor even further examined here. (I want to avoid what David French has called “dorm room originalism.”) Under any view, it seems uncontroversial to say that the power to prosecute crimes is an executive power – the power to “execute,” but “faithfully,” the laws that Congress enacts to define crimes and their consequences.

Still, our federal criminal law tradition has for decades observed a strong separation between politics and presidential control over federal prosecutions. One can trace this norm in “recent” years to the 50-year-old post-Watergate concern about President Richard Nixon’s efforts to control actions of the FBI and prior episodes of overreaching presidential attempts to control all executions of the law (for example, FDR’s court-packing plan).

But a broad interpretation of the unitary executive theory asserts that the president, properly, has direct control over all federal prosecutors and prosecutions. Trump’s actions regarding the indictment of Comey, his former FBI Director, reflects this view – he fired a U.S. attorney (whom he had nominated) who expressed concerns about that imminent indictment. (Although Professors Bruce A. Green and Rebecca Roiphe have argued that “the president lacks … constitutional power over individual prosecutions,” that debate is, again, not my point.)

This column seeks to move past all of the above, to make a different, basic constitutional criminal law point: Even if the president controls who and what will be prosecuted, and who will prosecute, it is the judicial branch that controls how, and how far, those prosecutions may go. Thus some have argued that the prosecution of federal criminal crimes is in part a judicial function. The executive cannot prosecute without the cooperation of federal courts and judges. In other words, the unitary executive theory does not and cannot control outcomes in the judicial branch. That is the theory and the point – the genius if you will – of the separation of powers our constitutional Framers gave us.

Life tenure as a constitutional protection

Unlike some, I think a key component of the separation of governmental powers is the constitutional guarantee of judicial life tenure. Article III says that federal judges must “hold their Offices during good Behaviour,” and this was intended, and has always been interpreted, to mean that federal judges serve for life absent impeachable conduct. Judicial life tenure as a constitutional corollary makes our federal judicial branch strong, and it’s unique in the world. While other proposals such as term limits have been suggested – another debate I do not wish to enter here – I believe life tenure is, on balance, the best, as well as a constitutionally intended, protection against executive branch over-reaching.

Life tenure gives our federal judges the independence to do what is right, regardless of current political winds. Indeed, federal district judges have exercised their independence to enjoin the Trump administration over 100 times in the past eight months. Only relatively few (albeit important) cases have reached the Supreme Court, and at a preliminary stage. As Professor Steve Vladeck has written, even if the Supreme Court’s performance so far has been “troubling,” federal district court judgments are (largely) being observed. The Supreme Court has not yet ruled on the final merits of any Trump administration policy (although three cases are now set for the upcoming October 2025-26 term: tariffs, removal power, and (likely) birthright citizenship). At this moment, we should celebrate and encourage the independence shown by life-tenured federal judges. When we look at the reasons the Framers provided for life tenure, I want to place my faith in the constitutionally protected independence of the courts, before giving into a nihilistic “take to the streets” view (see below).

The purposes underlying the constitutional guarantee of life tenure

Whether federal judges should have life tenure was a point of debate at the constitutional convention. It was adopted (non-textually, by saying “during good Behaviour”) without much controversy. Alexander Hamilton, the chief defender of the Constitution in the ratification debates, explained the concerns and justifications in Federalist No. 78. If you do nothing now but read (and re-read) Federalist No. 78, this essay will be satisfied. The words speak largely for themselves.

The federal courts, Hamilton wrote, are “the bulwarks of a limited Constitution.” An “independent spirit in the judges” is “essential to the faithful performance of their “arduous duty.” “The independence of the judges” is “requisite to guard the Constitution and the rights of individuals from … the arts of designing men,” which “have a tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Federal judges have a “duty as faithful guardians of the Constitution” to strongly, (if also wisely, recall the cautious strategy of Marbury v. Madison) exercise their independence from the other branches.

Hamilton also explained in No. 78 that “We the People” who initially adopted the Constitution are superior in power to any branch, and this power is exercised almost always through the separate branches carved out in the Constitution. Some critics of the (over)broad unitary executive theory advocated by Trump have urged people to ”take to the streets” rather than play within prior norms. There is an “originalist” foundation for that argument; the Declaration of Independence listed grievances against the king including making “Judges dependent on his Will alone” (that is, the lack of judicial independence), “erect[ing] a multitude of New Offices,” sending “swarms of Officers to harass our people,” and “altering fundamentally the Forms of our Government.”   

But I am not there – yet.  As the Supreme Court faces its first dispositive tests on Trump policies, I think we must place our faith in the independence of our judiciary. Not because we can be certain of where that will lead – but because it is the only institutional haven left. To return to my point above, life tenure remains a potential check on constitutional excesses of any president. Keeping faith in that branch when it comes to the “faithful” execution of federal criminal laws is where I find hope at this moment. “The People” need to maintain that faith. The Comey indictment will present one opportunity for judicial independence in federal criminal law. The rights of criminal defendants were strongly protected in the Bill of Rights because the Framers (treasonous criminals all) were concerned about governmental overreach. I encourage our federal courts and judges to exercise the independent power that the Constitution provides to ensure that the government is held in check and that justice be done.