The term is not quite over, but I have no doubt that Hunter v. United States, decided on June 18, is its most important criminal case. In Hunter, the court ruled that there is a “miscarriage of justice” exception to waivers of appeal, which have become standard in federal criminal plea bargains. The court’s 8-1 decision drew little immediate media attention – as Adam Liptak writes, at the end of the term, “important decisions can get overlooked.” The lopsided vote in Hunter masks deep divisions within a court that was really split 5-4, and a three-justice concurrence by Justice Neil Gorsuch suggests broad implications for much of our current criminal justice system. Twenty-six years ago, the court issued a similar little-noticed-at-first decision called Apprendi v. New Jersey, which over time revolutionized much criminal law doctrine with reverberations still being felt. Four years later, Justice Sandra Day O’Connor called Apprendi a “number 10 earthquake.”
I think Hunter may portend similar seismic shifts in criminal law.
Facts and proceedings in Hunter
In 2024, a fraudster named Munson Hunter III pleaded guilty. As part of a plea bargain that dismissed nine of 10 criminal charges, Hunter signed an agreement (and also agreed in court) that he would not appeal his conviction or sentence. At a hearing, Hunter said he understood that his sentence had “not yet been determined” and would be “within the sole discretion” of the judge. He nevertheless agreed that he “knowingly and voluntarily waives the right to appeal.”
Weeks later, the court’s probation office recommended that, in light of prior mental health issues, Hunter should be required (when on supervised release after any prison time) to “take all mental health medications that are prescribed by his [treating] physician.” Hunter objected, saying “I don’t drink. I don’t use drugs. … I don’t want to have to be forced to medicate.” The sentencing judge imposed that condition anyway and, despite his waiver of appeal, Hunter filed an appeal arguing that compelled medication would violate his constitutional rights. The U.S. Court of Appeals for the 5th Circuit dismissed his appeal, relying on its precedent ruling that an appeal waiver controls even if a sentence is “unconstitutional.” The Supreme Court granted review to settle differing lower court views; many had ruled that appeal waivers could not be enforced if a miscarriage of justice would result.
Eight justices agree: courts may correct a miscarriage of justice
Justice Elena Kagan’s majority opinion vacated the 5th Circuit and adopted the prevailing lower court view (while remanding for consideration of Hunter’s specific objection). For all but Justice Clarance Thomas, Kagan wrote that an appeal waiver is “unenforceable when it would result in a miscarriage of justice” – “the kind of egregious error that would bring the judicial system into disrepute” and “undermine public confidence in the judiciary.” Quoting from a 1988 precedent, Kagan repeated that “[t]he ‘federal courts’ … have an ‘independent’ ‘institutional interest’ in ensuring that legal proceedings ‘appear fair to all who observe them.’” Or, as she quoted from a 2008 dissent by Justice Samuel Alito, “[w]e have repeatedly stressed the importance” of “the interest of the Judiciary and the public in correcting grossly prejudicial errors of law that undermine confidence in our legal system.”
Chief Justice John Roberts silently joined Kagan’s opinion, while Thomas wrote a solo dissent. Justice Brett Kavanaugh “join[ed] the Court’s opinion in full” (along with Alito and Amy Coney Barrett), and also penned a separate concurrence, joined by Alito and Barrett, while Barrett concurred alone. Finally, Gorsuch wrote his own lengthy concurring opinion, joined (in an unusual pairing) with Justices Sonia Sotomayor and Ketanji Brown Jackson. Thus, in my perhaps idiosyncratic vote-counting system, I would record the vote as 8 (2+3+3) to 1.
The two competing three-justice concurrences expose what is actually a 5-4 court. Gorsuch’s concurrence boldly takes to task the entire structure of modern criminal law plea bargaining. In sum (you really should read it in full), Gorsuch predicts that there is “considerable work ahead to flesh out” the implications of what he believes the court’s opinion should lead to. In response, Kavanaugh’s concurrence makes clear that he, Alito, and Barrett “respectfully disagree” with Gorsuch’s “understanding,” which Kavanaugh says “may not be entirely consistent with the Court’s opinion.”
That simple “may not be” may foreshadow huge doctrinal developments. Predicting voting alliances is far from an exact science. But one might speculate that, in a future case, Kagan could join the Gorsuch group with Sotomayor and Jackson, while Thomas might align more with Kavanaugh, Alito and Barrett. That division would leave a 5-4 court, with the chief justice silently in control. And the power of Gorsuch’s willingness to disrupt settled doctrine should not be underestimated: It can produce results. Witness his doctrine-shifting impact on administrative law (Loper Bright v. Raimondo) and his push behind the ongoing right-to-jury-trial “revolution” (including next term’s 12-person jury case, Kian v. Florida).
Kagan’s opinion for the entire (almost) court
Let’s go through several of the opinions. A few snatches from Kagan’s straightforward precedent-laden analysis might lead some to describe Hunter as “limited.” Carefully written to carry eight ideologically different justices, Hunter could be read to recognize only a narrow, “hard-to-meet” miscarriage of justice exception, permitting judicial action only in “extreme cases” where a failure to consider an egregious situation, despite an appellate waiver, would cause the public to question “the judiciary’s commitment to law.” The idea that courts have the power to correct miscarriages of justice is so common, timeless, and frankly unspecific, that even the “conservative” justices were able to “join[] the Court’s opinion in full.”
As already mentioned, Barrett also filed her own brief concurrence to describe her view of the source of the court’s power to “correct” errors – she previously published two articles as a law professor on the topic. Barrett seems to be responding to Thomas’ claim that there is no constitutional right to appeal (a “true fact” that feels irrelevant today and yet always surprises law students) and claiming that there is no “source of law” to allow judicial intervention. While there may not be a source of law to allow judicial intervention, she believes that “egregious” and “obvious” errors can be corrected.
But it is Gorsuch’s three-justice concurrence that could lead to far-reaching changes and a deep 5-4 division in future criminal law cases. So let’s turn to that.
Gorsuch: “the jury trial has given way to a conveyor belt of plea bargains”
That’s the first sentence in a concurring opinion that is longer than the majority. In sum, Gorsuch writes that “the Court has often condoned” various “coercive prosecutorial tactics designed to induce defendants to take plea deals.” Yet at the founding, denial of jury trials was a centerpiece of objections in the Declaration of Independence, and the right was enshrined “not just once, but twice, in the Constitution.” By contrast, “plea bargains didn’t begin to emerge as an alternative to trial” until the 1850s, and “even then” that new idea “met with intense judicial skepticism … well into the twentieth century.” Since court precedents bear “some responsibility” for the current state of affairs, in Gorsuch’s view Hunter is merely a “begin[ning] to correct course.”
Gorsuch presents the 1978 decision in Bordenkircher v. Hayes as illustrative of “the kind of coercive tactics this Court became willing to stomach.” Hayes was threatened by the prosecutor with a life sentence for forging an $88.30 check, unless he accepted the prosecutor’s offer of five years in prison. He refused, and the prosecution reindicted him and obtained a mandatory life sentence. The court affirmed, acknowledging that even if the result was not “ideal,” “the fact is that … plea bargain[s] are important components of this country’s criminal justice system.” According to Gorsuch, such a result would have been “unthinkable only a few decades earlier.” Gorsuch also notes Brady v. United States, which upheld in 1970 a plea bargain that the defendant agreed to only after being threatened with the death penalty.
And that is not all. After describing the current plea bargain system as ahistorical and inconsistent with the framers’ vision, Gorsuch examines “even deeper problems lurking” in the court’s common “voluntary and knowing” standard for plea bargains. A century ago, the court wrote unanimously (with one unexplained concurrence) in Kercheval v. United States that a plea agreement is not “knowing” unless made “with full understanding of the consequences.” (A strong 2025 article by Professor Julian Cook may have influenced re-discovery of this case.) Before waiving constitutional rights, says Gorsuch, a person “must fully understand the consequences of that decision.” In her concurrence, Barrett (who you will recall joined the court’s opinion “in full”) echoes Gorsuch’s concern, noting that under “longstanding waiver principles,” “[i]t is well established” that a defendant’s waiver of “a known right” must be “intentional” (quoting from the court’s 1938 decision in Johnson v. Zerbst).
I pause to note the huge implications of Gorsuch’s and Barrett’s mutual reliance on the meaning of “voluntarily and intelligently” waiving a “known” constitutional right. Gorsuch pretty clearly suggests that many appeal waivers and plea bargains do not meet this standard because the defendants do not yet know the consequences regarding their rights. Gorsuch also notes a potential impact of allowing unknowing waivers to support “unreasonable searches and seizures” of a defendant’s home. Meanwhile, Barrett does not say exactly why she disagrees with Gorsuch’s “understanding,” but she joins the court’s opinion that Hunter may appeal his sentencing condition despite his waiver, citing Zerbst.
But the Zerbst standard is not limited to plea bargains; rather it is often cited generally, and specifically, to support “consent” searches in the Fourth Amendment context. Gorsuch says that the “work ahead” regarding his views is for “lower courts” to “flesh [things] out.” If they take him up on this, together with Barrett’s views, a stricter (and I would argue, more realistic) application of an “intentional,” aware-of-the-consequences standard for “knowing and voluntary” waivers could have impacts well beyond the narrow appeal waiver context.
Finally, Gorsuch’s concurrence throws into doubt many current sentencing practices and the federal rules that govern sentencing, the United States Sentencing Guidelines. Kagan wrote for all eight justices that a miscarriage of justice encompasses any “sentence exceeding what the relevant statute allows.” Gorsuch expounds on this, writing that that “category should likewise include” other aspects of sentencing. He mentions at least four, supported by existing lower court decisions: (1) penalties imposed for “offenses different than those of which the defendant stands convicted,” such as expunged convictions (I think this might also reach United States Sentencing Guideline 2B1.1, which appears to have allowed Hunter’s sentencing judge to consider all 10 counts that Hunter was charged with rather than just the one to which he pled guilty, something Gorsuch also criticizes); (2) remedies or mandatory minimum sentencings that “the law does not permit” or “for which the defendant does not qualify”; (3) “constitutionally infirm conditions of supervised release” such as forced medication that Hunter alleged here; and (4) “marked departure[s] from mandatory sentencing procedures” such as not providing “reasons for [a] chosen sentence” or not addressing “non-frivolous arguments for a different one.”
Gorsuch also provides other “aspects of sentencing” that he considers open to examination. Gorsuch’s long list undoubtedly triggered Kavanaugh’s brief critique that Gorsuch “would set a lower bar” for miscarriages of justice that “may not be entirely consistent” with Kagan’s opinion. Gorsuch agreed that “none of these questions is before us in this case,” but he said (portended?) that “all … may warrant further exploration.”
A few further thoughts about Hunter
Kagan’s and Gorsuch’s opinions raise other ideas that I have been writing about this term.
- With three justices expressing a broad critique of central elements of our current criminal justice system, three others disagreeing in a more conservative direction, and Kagan holding firm in the middle with Roberts (who was silent), there is no better example of the “wild card court” I’ve described than this case.
- Kagan says “the answer” in Hunter “stems from the special, and indeed pivotal, role of the judiciary.” When Thomas asserts (alone) that the majority has no “source of law” for its ruling, Barrett responds that the court has inherent authority to recognize “doctrines … which are ‘settled by tradition or emerging consensus.’” As I wrote back in March, it is time for the court and scholars to deeply (re)investigate the historical and independent authority of the judicial branch as proclaimed in the first sentence of Article III of the Constitution: “The judicial Power of the United States, shall be vested in one supreme Court.” Like the parallel first sentence of Article II, vesting “the executive Power … in a President,” Article III provides a strong “source of law” for federal judges, one potentially as powerful as the “unitary executive” theory we see today. I think that an essential (pivotal?) component of the American conception of the judicial power is to correct, as both Kagan and Barrett write, “egregious” and “obvious” errors.
- Can a miscarriage of justice be addressed even if ineffective lawyers miss it? Neither Kagan nor Gorsuch address that question; but as I have written, the “principle of party presentation” has always been merely a guideline that the Supreme Court has itself ignored. Despite this, as I noted earlier this month, the court has twice this term applied the principle as though it is a binding, dispositive, rule. Professor Judith Resnik has since reminded me that the 1842 case of Swift v. Tyson – a civil proceduralist’s landmark – is another (in)famous example. (I continue to not understand why Sotomayor and Jackson, at least, appear to accept application of this principle as a rigid “rule” without comment.) If the court agrees that in some cases a federal court has the power to address at least “egregious and obvious” errors, then the court needs to explain why it would lack that power if poor lawyering leaves the error unexposed.
My conclusion … for now
As with Apprendi, any transformative implications from Hunter will have to be divined in future cases. Hunter will undoubtedly produce lower court applications, as well as much legal commentary and articles, to “flesh out” Gorsuch’s ideas. Kagan’s majority was written to stimulate as little controversy as possible. It was thus uncharacteristically prosaic, giving only examples supported by already existing lower-court rulings. Her opinion did not speculate about the future (other than to “doubt” that Hunter will “‘open the floodgates’ to ‘waived appeals’”). And she pointedly made no comment on any of the other justices’ separate opinions, thus gathering a solid majority while letting sleeping dogs lie … for now.
Importantly, the real substantive division in Hunter appears to be (as it was in Apprendi) five to four. Kagan’s majority (with Roberts silently joining) and Gorsuch’s concurrence speak for a broad judicial power. Kavanaugh, Alito, and Barrett firmly if “respectfully disagree” with Gorsuch’s broad discussion, and Thomas dissented. Exactly where Roberts and Kagan – indeed, all the justices – will land along the arc of Gorsuch’s ambitious vision will not be settled for years to come. And, consistent with Roberts’ apparently preferred institutional role as chief justice, he appears, by his silence, to remain solidly in control of the court’s agenda.
