SCOTUS’s Declining State Criminal Appeals

A version of this piece first appeared on One First, a newsletter about the Supreme Court.

With the U.S. Supreme Court getting close to filling out its merits docket for the current (October 2024) term, there’s one rather stunning data point: At least as of now, the justices are set to hear precisely zero direct appeals from state criminal convictions during their current term. And although the fact that we may end up with no such cases this term may be a bit of a statistical fluke, the long-term downward trend is undeniable.

The disappearance of state criminal appeals from the justices’ docket is not just a noteworthy trend; it is a profoundly problematic one — because direct appeals from criminal convictions have historically been some of the most important vehicles through which the justices have clarified old rules of constitutional law and articulated new ones; and because, thanks to Congress and the Court, they’re increasingly the only vehicles through which new law can be made in a way that will benefit current and future criminal defendants and civil rights plaintiffs. Even if this Court might reach different answers to questions about the scope of the Fourth, Fifth, Sixth, and Eighth Amendments than someone like me might prefer, the demise of the Court’s criminal appellate docket means that, most of the time, it isn’t providing any answers at all — a result that asymmetrically tilts litigation in favor of governments and their officers at the expense of their citizens.

Documenting the Decline of Direct State Criminal Appeals

The data at the heart of this piece comes from two sources: the Supreme Court’s own “Granted/Noted Cases” lists for each term dating back to the October 2007 term — all of which are available on the Court’s website; and, for earlier years, the “Statistics” compiled each November by the Harvard Law Review. Unlike some of the Court’s other data, the Granted/Noted Cases lists capture exactly what we want — every case that received plenary review from the Court and was decided during the term at issue.

One of the things you’ll notice from those lists is that the Court has a three-letter system for categorizing every case over which it exercises appellate jurisdiction. The first letter (C/A/Q) tells us whether the case is there via certiorari; via mandatory appeal (from a three-judge district court); or on a question certified by a federal court of appeals (which hasn’t happened since 1981 — see the trivia, below). The middle letter tells us what kind of court the case came from (Federal Appeals Court/State Court/Three-Judge District Court/Military/Other). And the last letter tells us whether the case is civil (X); criminal (Y); or habeas or some other collateral attack on a conviction (H).

Focusing on cases coded “CSY” will thus cover the precise dataset we’re looking for: cases in which the Supreme Court is hearing a direct appeal from a state criminal conviction. To that end, here’s a chart that one of my superstar RAs, Alyssa Negvesky, put together collating the case-code data for every term going back to October 2007:

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There are a couple of interesting conclusions to draw from the data:

First, the dominant source of cases on the Court’s docket — federal civil appeals (“CFX”) — has remained fairly constant over the 17 years’ worth of data. Thus, even as the Court’s total number of cases has shrunk from the low 80s to the mid-60s, the fall-off hasn’t been there. Second, the categories with visible fall-offs include federal criminal appeals (CFY); state criminal appeals (CSY); and federal habeas petitions (CFH), although the Court’s data doesn’t distinguish between habeas petitions from state prisoners and those from federal prisoners. And third, with regard to state criminal appeals, the fall-off has been to near zero (and, so far this term, actually zero). As of Friday, the Court has granted certiorari to review three decisions from state courts. The Court categorizes all three as civil appeals. And although I think a fairer characterization of Glossip v. Oklahoma is as a post-conviction review proceeding (so, CSH instead of CSX), it is most definitely not a direct appeal of a criminal conviction.

And one point not reflected in this data, but which Alyssa and I are working on providing additional support for, is that the direct criminal appeals the Court is taking, both from lower federal courts and state courts, tend to be focused more on substantive questions than on criminal procedure. Just to take one anecdotal example, for the October 2022 Term, of the eight “CFY” cases (federal criminal appeals), only one (Samia v. United States) involved a question of constitutional criminal procedure. And the lone “CSY” case from that term, Counterman v. Colorado, involved a substantive First Amendment challenge to the statute of conviction — not a criminal procedure issue.

To draw a quick and unscientific contrast, consider the Supreme Court’s docket 10, 20, and 30 years ago (I’ll use the October 2023 term for this comparison because it’s the last term for which we have full data). In the October 2013 term, the Court heard four direct appeals from state criminal convictions, all of which raised criminal procedure issues. In the October 2003 term, the Court heard nine direct appeals from state criminal convictions, eight of which raised criminal procedure issues. And in the October 1993 term, the Court heard seven direct appeals from state criminal convictions, six of which raised criminal procedure issues. We’re working on more comprehensive charting of all of these categories, but there’s no immediate reason to believe that any of these terms are outliers.

Thus, we can make two statements with a fair degree of confidence: First, direct appeals from state criminal convictions are disappearing from the Supreme Court’s docket. Second, that decline (and the broader decline in the Court’s criminal procedure docket) is a relatively recent phenomenon, with the most dramatic effects over the last 7–8 years.

Why This Matters: The Importance of Establishing Law

I’ll leave for another day the question of why the Court has become less interested in direct appeals from state criminal convictions and/or criminal procedure issues. (I’ll just flag for now that I don’t think that a fall-off in the total number of petitions explains it.) Because whatever the cause of this trend, there are at least three related but distinct consequences that ought to be considered.

First, with regard to state criminal defendants themselves, the downward trend is doubly problematic. Not only does this mean that a vanishingly small number of criminal appeals from state courts are getting the justices’ attention, but since Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal district courts considering habeas petitions attacking state criminal convictions are required to give substantial deference to the state court’s constitutional analysis. Thus, since 1996, the Supreme Court has become the only federal court in a position to provide de novo review of constitutional claims on which state prisoners lost at trial. One would think that this shift would put pressure on the justices to take more direct appeals from state criminal convictions — or, at the very least, more direct appeals from state post-conviction proceedings. In fact, the opposite has happened. In the process, direct appellate review of a state criminal conviction has gone from being a long-shot to being a no-shot — when it’s arguably more important than ever.

Second, because of AEDPA (and, it should be said, of how the Supreme Court has interpreted AEDPA), direct appeals from state courts, whether from a conviction or from a state post-conviction proceeding, are just about the only way in which the Supreme Court can clarify the constitutional rules in state criminal cases in a way that will apply to future cases. That’s because AEDPA bars relief on claims that were adjudicated in state court unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

What that means in practice is that federal courts hearing habeas petitions challenging state convictions, including the Supreme Court, can’t grant relief unless the law is already clear. And the Supreme Court held in 2000 that only the Court’s decisions, and not its dicta, can “clearly establish” constitutional rules enforceable under AEDPA. After AEDPA, a state criminal defendant, to prevail on appeal, need only show that the state court was wrong. A state criminal defendant, to prevail in a federal habeas petition, needs to show that the state court acted in flagrant disregard of an existing Supreme Court precedent. It is not logically possible, in the second class of cases, to make new law — even if the state court did act in flagrant disregard of an existing Supreme Court precedent. The best a court could say in such a case is that the law was already clear, and the state court mucked it up.

Third, damages suits against government officers have also come to depend upon “clearly established” law — thanks to the Supreme Court’s modern qualified immunity jurisprudence. Under that jurisprudence, to prevail in a damages suit against most government officers, the plaintiff must show both that the officer violated their rights and that at the time of the violation it was clearly established that the officer’s conduct was unconstitutional. (The plaintiff has to prevail on both questions to “win.”)

Thus, if the unconstitutionality of the officer’s conduct wasn’t “clearly established” at the time it took place, then courts have an incentive to rule for the officer without deciding whether, going forward, their conduct actually did cross the line. The Supreme Court tried to account for this in 2001, holding that, in qualified immunity cases, federal courts always needed to answer both questions — so that, even if the officer won on uncertainty today, the law would be settled for the future. But the justices unanimously back-tracked from that requirement in 2009 — and have since poured even more cold water on courts providing forward-looking guidance in cases in which the law wasn’t clearly established at the time of the alleged violation. What all of this means is that it is virtually impossible today to establish new constitutional rules (or clarify old ones) in damages suits, too.

If damages suits aren’t a vehicle for clarifying the scope of our constitutional rights, then all that’s left is injunctive relief or direct appeals from criminal cases raising the same constitutional questions. Injunctive relief quite obviously can establish forward-looking principles of constitutional law. But most constitutional violations are brief — and are thus not appropriate for prospective relief. That’s especially true in the context of the kinds of constitutional claims that tend to come up in criminal cases — because they’re either about things that happened before the trial or things that happened during the trial. That increasingly leaves direct appeals in criminal cases and from state post-conviction proceedings as the only way to clarify the scope of the Constitution when it comes to an array of our individual rights. The fewer such cases that the Court is hearing and deciding, the more those rights will remain unclarified.

Nor is it a response to suggest that there just aren’t an array of important and unsettled questions of constitutional criminal procedure currently percolating through lower courts. From the relationship between biometrics and the Self-Incrimination Clause to how “geofence” warrants square with the Fourth Amendment to continuing debates over the scope of the Sixth Amendment’s Confrontation Clause and beyond, there is a veritable slew of unanswered constitutional questions on which the Supreme Court’s guidance would presumably be quite useful. Folks will have their own views as to which disputes are more worthy of certiorari or less, but any argument that there aren’t suitable cases out there is belied by plenty of contrary examples.

Of course, some may read this and think that we’re better off having the current Supreme Court stay out of these issues than dive into them. I understand where that impulse comes from, but I rather vehemently disagree. First, at least some criminal procedure issues have a way of not sorting the justices into their normal ideological camps. Second, even for those that do, the Court affirmatively articulating a rule that is widely deemed to be insufficient is far more likely to galvanize a public and/or legislative response than the Court simply leaving the law unsettled. And even if it didn’t, I’d still think we would all be better off knowing what the law is than living in a state of uncertainty — because in a day and age in which uncertainty uniformly means that the government wins, it’s hard to see how we’d be that much worse off if the Court provided more clarity. It also ought to follow that there would be salutary effects for the government and its officers as well if it were clearer where the relevant constitutional lines were — and weren’t.

I don’t mean to overstate the point; the Court can, quite obviously, clarify constitutional rules in federal criminal appeals — which continue to represent the second-largest set of cases on the Court’s docket. But that subset is also declining, both in absolute numbers and with respect to how many of the cases involve criminal procedure questions. And federal criminal prosecutions, for an array of reasons, just don’t tend to raise the same array of constitutional questions that prosecutions from the 50 states do. Federal courts aren’t immune from constitutional errors, but for a host of reasons, more errors of more distinct types are likely to be made in different state courts.

In all, then, the more that direct appeals from state criminal convictions are disappearing, and have disappeared, from the Court’s docket, the less forward-looking constitutional law the justices will make — especially when it comes to those constitutional rights most directly related to law enforcement interactions and the criminal justice system. I don’t imagine for a second that this is why direct appeals from state criminal convictions have all-but disappeared from the Supreme Court’s docket. But it is, at least in my view, reason enough for why they should not have disappeared — and why it is and ought to be incumbent upon the justices to take more of these cases in the years to come.

Stephen Vladeck is a law professor at Georgetown University and editor and author of the Supreme Court newsletter One First.

Suggested Citation: Stephen Vladeck, SCOTUS’s Declining State Criminal Appeals, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Dec. 17, 2024), https://statecourtreport.org/our-work/analysis-opinion/scotuss-declining-state-criminal-appeals