Analyzing swing votes in Supreme Court criminal decisions
A column examines the Supreme Court’s recent criminal law rulings, noting that most of its criminal decisions in the past two terms favored defendants. It attributes this pattern to a set of unpredictable middle justices, with Justice Elena Kagan often assembling majorities. The piece previews Beaird v. United States, the term’s first criminal case, to see whether those dynamics continue.
Amy Howe reports that 21 of 30 criminal law rulings over two terms favored defendants or the defense side. The 2025-26 term had 11 such outcomes out of 16; the earlier term had 10 of 14. She links this to four less predictable justices: Roberts, Gorsuch, Kavanaugh, and Barrett.
Gorsuch and Kavanaugh each wrote two defense-favorable opinions. Barrett joined eight of 11 such majorities but authored none. The column previews Beaird v. United States, the term's first criminal case, set for argument next Tuesday.
The court's criminal law direction may affect defendants, prosecutors, and lower courts as they interpret rulings. If the pattern continues, defendants in similar cases could see more favorable outcomes, while governments may adjust charging or litigation strategies. Beaird may signal whether the court's less predictable justices keep shaping results.