Implications of a More Conservative Supreme Court for White-Collar Practitioners

What one commentator has termed the "white-collar paradox" — more conservative justices generally ruling in a manner advantageous to white-collar criminal defendants — may be magnified if Barrett is confirmed. A review of recent decisions of the Roberts court and of decisions in which Barrett participated during her limited tenure on the U.S. Court of Appeals for the Seventh Circuit provides some hints regarding how the Supreme Court's future decisions may affect the law relevant to white-collar criminal practice, and suggests that the court will continue to treat white-collar defendants differently than their "blue-collar" counterparts.

The Roberts Court and the 'White-Collar Paradox'

The term "white-collar paradox" — coined by Prof. J. Kelly Strader to describe justices' voting in white-collar cases appearing to be at odds with their tendencies in "blue-collar" criminal cases — fittingly describes the voting patterns of the Roberts court, especially when it comes to the conservative justices. See, J. Kelly Strader, "The Judicial Politics of White Collar Crime," 50 Hastings L.J. 1199, 1202-03 (1999). We reviewed the Supreme Court's jurisprudence over the last 10 years to try to determine whether the "white-collar paradox" continued in the Roberts court. Not surprisingly, we found that in a significant majority of the "blue-collar" cases when the court was not unanimous, the conservative justices more often supported ruling in favor of the government, while the liberal justices more often supported ruling in favor of the defendant. This is consistent with a Wikipedia analysis of the justices' voting patterns in criminal procedure cases, which, as of 2017, found that justices typically considered conservative sparingly supported ruling in favor of the defendant: Justice Antonin Scalia (27.4%); Justice Anthony Kennedy (33.3%); Justice Clarence Thomas (22.4%); Chief Justice John Roberts (31.1%); and Justice Samuel Alito (18.6%); while justices typically considered liberal more often supported ruling in favor of the defendant: Justice Ginsburg (62.3%); Justice Stephen Breyer (55.6%); Justice Sonia Sotomayor (66.9%); and Justice Elena Kagan (62.5%). See, Wikipedia, "Ideological leanings of United States Supreme Court justices," citing Harold J. Spaeth, Lee Epstein, et al., 2017 Supreme Court Database, (Version 2017 Release 1).