{"id":118791,"date":"2026-09-17T19:37:17","date_gmt":"2026-09-18T00:37:17","guid":{"rendered":"https:\/\/milesfortis.com\/?p=118791"},"modified":"2026-09-17T19:37:17","modified_gmt":"2026-09-18T00:37:17","slug":"118791","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=118791","title":{"rendered":""},"content":{"rendered":"

Criminal cases coming in the new term \u2013 and why the court could and should do more<\/a><\/p>\n

As many SCOTUSblog readers are likely aware, there are some blockbuster criminal law cases set for the Supreme Court\u2019s upcoming term. Bans on AR-15<\/a> and similar semi-automatic rifles. Whether juries in criminal cases must always be 12 persons<\/a>. Whether seizing a plane<\/a> for the unlawful transport of a six-pack of beer is an unconstitutional \u201cexcessive fine.\u201d<\/p>\n

In fact, 11 of the 25 cases already granted for review are, by my calculation, criminal law and related (what I call the court\u2019s \u201cCLAR\u201d cases<\/a>). They won\u2019t all be headline-grabbers, but 40% of the court\u2019s docket is a very healthy chunk. And the court will surely grant some more after its Sept. 28<\/a> \u201clong conference.\u201d<\/a> I provide more details on the already granted cases below. But first:<\/p>\n

The court can and should take more criminal cases<\/strong><\/p>\n

Before discussing the merits of the current 11 CLAR cert grants,<\/a> I want to point out that the court could do much more. Last month the Congressional Research Service put out a 68-page report<\/a> on \u201cCircuit Splits from 2025.\u201d That little-reported document details almost 100 cases in which lower courts have disagreed (just in 2025?) on significant federal points of law. The Supreme Court has statutory jurisdiction to address such lower court \u201csplits,\u201d whether from federal<\/a> or state<\/a> courts. The Supreme Court\u2019s Rules 10(a) and (b)<\/a> expressly note that lower court \u201csplits\u201d on federal questions \u2013 that is, cases from different courts that disagree on some important point of federal statutory or constitutional law \u2013 are a reason for the court to grant review. Granting Supreme Court review on lower court splits makes sense, as national uniformity on federal issues is a major, and one of the oldest<\/a>, reasons for having (as Article III of the Constitution begins) \u201cone supreme Court.\u201d <\/a>What\u2019s more, I have to believe that the CRS report did not come out of the blue but was prepared with the knowledge of (and perhaps even encouragement from?) folks in the solicitor general\u2019s office<\/a>.<\/p>\n

By far, the largest category of unresolved such \u201ccircuit splits\u201d listed by CRS is criminal law and procedure, with 28 cases \u2013 three times larger than the next category, civil procedure. The report provides case citations for all 28 of these (at least one from every circuit except the U.S. Court of Appeals for the 5th Circuit). Just a few examples of important questions that need settling: Is embezzlement a continuing offense<\/a> that extends the statute of limitations? Is car-jacking a violent felony<\/a> when the state statute also reaches extortion? Is criminal forfeiture limited<\/a> to property a defendant has actually acquired (here a cert petition may be pending)? What intent is required for a civil rights violation on a county road<\/a>?<\/p>\n

To make an oft-repeated point,<\/a> the Supreme Court used to decide as many as 150 cases per term. But during the 2025-26 term the justices heard argument after full briefing in only 58. According to a Federalist Society report<\/a> that has often<\/a> been repeated<\/a>, in 2012 Chief Justice John Roberts said that the court could hear \u201c100 cases without any stress or strain, but the cases just aren\u2019t there,\u201d and he \u201cemphasized that circuit splits are far and away the most important consideration.\u201d The capacity<\/a> of the justices to handle more<\/a> cases is<\/a> not<\/a> an<\/a> issue<\/a> \u2013 more grants of review to provide national uniformity in criminal cases ought to be a priority.<\/p>\n

<\/p>\n

Criminal-law-and-related cases already set for the 2026-27 term<\/strong><\/p>\n

The court has issued argument calendars<\/a> for the last three months of 2026. As detailed below, there are two CLAR cases set for argument in the October sitting and three for the November sitting. The blockbuster AR-15 and criminal forfeiture cases will not be heard until Dec. 1 and 2. The case where I expect the court will rule<\/a>, non-textually but universally, that serious criminal case juries must always have 12 and not six jurors is still unscheduled and so will not be argued until 2027.<\/p>\n

Below are my relatively brief descriptions and observations on the CLAR cases set for argument so far in the coming term. The hyperlink for each takes you to the SCOTUSblog page for the case, where you can then find links to all the filings and other information about it. I address the three \u201cbiggest\u201d cases first, and then the other eight in order of their scheduled oral arguments. Keep in mind that more criminal cases are likely to be granted after Sept. 28.<\/p>\n

Semiautomatic rifles, 12-person juries, and excessive fines<\/strong><\/p>\n