President Trump’s nominee to replace retiring Justice Anthony Kennedy is set to perpetuate the Supreme Court’s irrelevance on criminal justice cases.

A study last month from Northwestern law professor Tonja Jacobi and Minnesota Court of Appeals law clerk Ross Berlin argues that since the 1970s, the Court has “sidestepped” profound criminal justice issues like stop-and-frisk, mass incarceration sentencing, unfair plea deals, and police shootings.

In part, that's because criminal justice is among the issues the Court’s liberals have ignored in order to pander to swing vote Anthony Kennedy, as UCLA law professor Jon D. Michaels argued in a Los Angeles Times op-ed Monday. “For years, progressive justices have tacked to the center, principally to win over Kennedy. In the process, they’ve often abandoned left-liberal constitutional theories,” Michaels claimed.

Much is uncertain about how the new justice will view policing and sentencing cases, but the study's lead author Tonja Jacobi told The Outline that though Kennedy’s replacement “could appear to be a little more moderate on these issues” than Kennedy, “I don't expect it to be a significant turn toward broader criminal procedure rights generally,” she said.

The problem is not that the Supreme Court doesn’t address criminal justice issues at all, but that it addresses them in limited ways that don’t align with how most people experience the criminal justice system. Most of the Supreme Court’s focus has been on criminal trials — even though only about 1 percent of criminal justice cases actually end in a trial.

As an example, stop-and-frisk is one of the most pervasive uses of police force and, like most police tactics, it disproportionately targets communities of color. But the Supreme Court has weighed in on the issue only to ask whether evidence found from stops and frisks can be used at trial. On the larger issue of whether police have the right to conduct searches that target black and Latinx people even when it doesn’t end in a criminal charge, the Supreme Court has remained silent.

The scope of its rulings on stop-and-frisk is limited to the rare instances in which the person being searched is actually charged with a crime, well below 12 percent of all stops and frisks.

“The multidecade battle between the liberal and conservative justices over whether [allowing evidence found from random searches] should be further restricted or fully expanded is irrelevant to the overwhelming majority of people affected by illegal police encounters, who are typically not prosecuted,” Jacobi and Berlin write.

Some prosecutors offer predatory plea deals to people charged with crimes, believing they can scare them. The justices have done little to place limits on what plea deals prosecutors can offer — even though, as the authors write, “almost all criminal cases are resolved via pleas,” not trials.

The Supreme Court, too, has not weighed in on harsh sentences, especially for minor drug crimes, that have led to the imprisonment of 2.3 million Americans. Almost all of the Court’s sentencing cases have revolved around the death penalty — an important issue, but one that directly impacts only about 20 to 50 people each year and that “has no measurable effect on the United States’ anomalous mass-incarceration problem.”

In his LA Times op-ed, Michaels offers a solution to the Court's relevance woes: fiery, progressive dissents that broaden the discussion on these issues and trailblaze the path for future liberals on the Court.

Last year, Associate Justice Sonia Sotomayor made headlines when she wrote a dissent criticizing the Court’s silence on criminal justice issues, arguing that its failure to take on the case of Ricardo Salazar-Limon — who was shot by a police officer — “continues a disturbing trend regarding the use of this court’s resources.”

Jacobi told The Outline that, as the Court becomes even more conservative, we could see more dissents like this. “The liberals might wake up to the fact that bickering over doctrine that skirts the big issues is ceding too much ground, and they may then start joining Justice Sotomayor in calling out the role that the Court plays in enabling a lot of racially divisive doctrine to continue,” she said.

Hear the making of this article and additional thoughts from Michael Waters on The Outline World Dispatch. Listen later on your favorite app or device below.

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