While we don’t usually cover SCOTUS’s order list unless there’s something special going on, the most recent order clocked in at nearly 60 pages and featured a number of interesting dissents that we thought our readers would be intrigued by.
First off, everyone’s favorite topic: restitution. Justice Gorsuch, a sometimes unpredictable member of the court’s 6-3 “conservative” majority, has authored a dissent that calls for nothing less than a radical rethinking of criminal restitution. Dissenting from three orders denying petitions for cert, Justice Gorsuch expresses skepticism “that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury.” Using originalist principles, he argues that “more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards.” Although he is disappointed this topic will not be taken up by the full Court, Justice Gorsuch “can only hope that federal and state courts will continue to consider carefully the Sixth Amendment’s application to criminal restitution orders.”
Now on to another interesting topic, with an interesting pairing of justices-Gorsuch and Sotomayor. Demonstrating the way in which originalist theory now dominates, this fascinating dissent focuses on the common-law rule (dating from ye olde England) that “gave officers no authority to make an ‘arrest without a warrant, for a mere misdemeanor not committed in [their] presence.'” Although the justices recognize that the case at issue would be a poor vehicle to resolve the question, they declare the necessity of resolving whether this common law rule was incorporated into the Fourth Amendment.
Doing a cursory google scholar result, it appears there is dated authority in Wisconsin discussing the “in presence” requirement, although nothing that immediately hints at the great intellectual dispute described in this dissent. If our more learned readers know more than us, we’d love to be educated in the comments. If not, it seems like this dissent hints at a new universe of defense arguments that can use the tools of originalism in favor of criminal defense objectives.
