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The Supervisory Power Of The Supreme Court As A Form Of Virtue Signaling

Only Justice Thomas was willing to look past the difficult consequences of an appellate waiver.

Josh Blackman | 6.19.2026 4:45 PM

Hunter v. United States was not on my radar screen. But this may be one of the most unexpectedly fascinating cases of the year. The question presented is simple enough. In what cases can a defendant escape a knowing and intelligent waiver of appellate rights.

The top-line vote was 8-1, though as I noted yesterday, the majority splits 2-3-3. Justice Kagan and Chief Justice Roberts were squarely in the majority. Justice Gorsuch, joined by Justices Sotomayor and Jackson, tried to expand the majority opinion. Justice Kavanaugh, joined by Justices Alito and Barrett, felt compelled to say the majority opinion was actually more narrow. This was hardly a usual 8-1 decision.

The dissent by Justice Thomas raised many important points that were completely ignored by the majority. Justice Barrett wrote a partial rejoinder that was very unsatisfying.

Justice Thomas points out how the majority creates an exception to the appeal waiver doctrine out of thin air. Justice Kagan does not rely on any law, contract-law principle, or common law rule. Rather, the Court could only rely on the so-called "supervisory power." But as Professor Barrett persuasively explained in a law review article two decades ago, this sort of power is a fiction without any grounding in law. Justice Frankfurter explained in McNabb v. United States (1943) that the supervisory power was based on general "considerations of justice not limited to the strict canons" of law. In other........

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