According to a SCOTUSblog column, the Supreme Court's recent criminal docket has produced a surprising pattern: 70% of "pure" criminal law decisions over the past two terms sided with the defense. The author attributes this not to the Court's liberal bloc, but to four "wild card" justices—Chief Justice Roberts and Justices Gorsuch, Kavanaugh, and Barrett—whose votes often determine the outcome in closely divided cases.
Gorsuch and Kavanaugh stand out as the most consequential swing votes. Gorsuch authored two pro-defense opinions and tends to side with defendants he sees as unfairly treated by the government, while Kavanaugh has shown particular concern for procedural fairness in death penalty cases. Barrett voted with the pro-defense majority in eight of eleven such cases but dissented in several close ones, making her less reliably pro-defense than her two colleagues.
The column also notes an unusual institutional pattern: Chief Justice Roberts, who wrote none of the pro-defense decisions, frequently assigned Justice Kagan to author the Court's opinion in those cases. The author suggests Kagan has become the "go-to" justice for crafting careful majority opinions in criminal law, even when the result favors the defense. The analysis is based on a single source, so no contrasting views are presented.