The Supreme Court’s order list today had an unsually large number of dissents and statements respecting the denial of certiorari, including three impacting criminal defendants. When the Justices dissent or make statements respecting the denial of certiorari, it reminds us to object, litigate, and preserve issues for later review in order to advocate for changes in the law that benefit our clients.
In Gonzalez v. United States, No. 24-5577 (Feb. 24, 2025) (cert. denied), Justice Sotomayor, joined by Justice Gorsuch, issued a statement respecting the denial of certiorari, that begins like this:
Founding-era common law gave officers no authority to make an “arrest without a warrant, for a mere misdemeanor not committed in [their] presence.” Bad Elk v. United States, 177 U. S. 529, 534–535 (1900) (collecting sources). This petition asks the Court to decide whether the Fourth Amendment incorporates that “in-the-presence” limitation on warrantless misdemeanor arrests. There is reason to think it might. After all, the in-the-presence requirement existed in some form at the founding. Ibid. This Court has often held, moreover, that the Fourth Amendment “‘must provide at a minimum the degree of protection’” the common law afforded at the time of its adoption. Lange v. California, 594 U. S. 295, 309 (2021) (quoting United States v. Jones, 565 U. S. 400, 411 (2012)).
Important questions about the in-the-presence rule and its scope remain, and in this case they impede the Court’s review of the question presented. In an appropriate case, however, the Court should grant review to consider whether and to what extent the Fourth Amendment incorporates the in-the-presence rule.
In Rimlawi v. United States, No. 24-23, Shah v. United States, No. 24-25, and Jacob v. United States, No. 24-5032 (Feb. 24, 2025) (cert. denied), Justice Gorsuch dissented from the denial of certiorari:
The Fifth Circuit held that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury. 95 F. 4th 328, 389 (2024). About that, I have my doubts. See Hester v. United States, 586 U. S. 1104, 1106–1107 (2019) (GORSUCH, J., dissenting from denial of certiorari).
Consistent with the Sixth Amendment’s promise of a trial by jury, this Court has held that “[o]nly a jury may find ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’” Erlinger v. United States, 602 U. S. 821, 833 (2024) (quoting Apprendi v. New Jersey, 530 U. S. 466, 490 (2000)). That means a jury must find both those facts that increase a criminal defendant’s exposure to imprisonment and any facts that increase his exposure to monetary fines. See Southern Union Co. v. United States, 567 U. S. 343 (2012). If all that is true, it is difficult to see how a judge’s factual findings might suffice to increase a criminal defendant’s exposure to a restitution award. As this Court has recognized, “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” Id., at 353 (internal quotation marks omitted). And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards. See Hester, 586 U. S., at 1107 (opinion of GORSUCH, J.); see also Apprendi, 530 U. S., at 502 (THOMAS, J., concurring); Pet. for Cert. 10–12.
I would have granted review in this case to resolve whether the Fifth Circuit’s decision comports with this Court’s precedents and the Constitution’s original meaning. In the absence of this Court’s review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment’s application to criminal restitution orders. Cf. State v. Davison, 973 N. W. 2d 276, 279 (Iowa 2022) (“restitution must be based on jury findings”). The right to trial by jury should mean no less today than it did at the Nation’s founding. See Hester, 586 U. S., at 1107 (opinion of GORSUCH, J.).
In the third criminal case, Woodward v. California, No. 24-227 (Feb. 24, 2025) (cert. denied), Justice Sotomayor issued a statement respecting the denial of certiorari that started this way:
The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” “[A]ny ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense” is therefore “a bar to a subsequent prosecution for the same offense.” McElrath v. Georgia, 601 U. S. 87, 94 (2024) (internal quotation marks omitted). This case raises an important question about whether California’s approach to construing trial court dismissals under Cal. Penal Code Ann. §1385(a) (Cum. Supp. 2025) as acquittals comports with the Double Jeopardy Clause. I nevertheless concur in the Court’s denial of certiorari today because the California Supreme Court should first address this question in light of this Court’s more recent double jeopardy precedent.
Certiorari stage documents are available in Gonzalez here; Rimlawi here; Shah here; Jacob here; and, Woodward here.