Criminal Justice After the Conservative Reformation

Criminal Justice After the Conservative Reformation

Bilionis, Louis D

This Symposium asks whether there has been a significant change in direction in the Supreme Court’s criminal justice jurisprudence recently. The question seems easily enough answered.

There has been a pronounced change, this Essay will argue, that reflects the end of an era. The last third of the twentieth century was a period of conservative reformation in criminal justice. Social, cultural, political, and legal forces called for a conservative redirection in criminal justice. The Court heeded the call. Now that those forces have been satisfied and have subsided, criminal justice has reached a turn. No longer under a strong, politically galvanized charge to emphasize pro-prosecution interests in law and order, constitutional law is freer to respond to liberty interests. It shows in the Court’s decisions and, even more pointedly, in the way the Court speaks.

I. THE END OF THE CONSERVATIVE REFORMATION AND THE EMERGENCE OF POPULARIZATION

There has been a distinct change in Supreme Court criminal jurisprudence dating back to at least the year 2000. Too many cases since then simply fail to conform to our expectations of a conservative Court led by the late Chief Justice William H. Rehnquist. Atkins v. Virginia,1 Roper v. Simmons,2 and Ring v. Arizona3-Rehnquist Court decisions overruling other Rehnquist Court precedents over Chief Justice Rehnquist’s objections-on their face suggest some course-shifting, as does Crawford v. Washington4 and its overruling of a conservative staple from the Burger Court, Ohio v. Roberts.5 Apprendi v. New Jersey6 and its sequels7 similarly depart from the established track by urging a prominent role for the jury that is at odds with the philosophy of legislative primacy over the assignment of roles for judges and jurors that the Burger and Rehnquist Courts promoted from the mid-1970s through the mid-1990s.8 Recent Fourth Amendment decisions-Kyllo v. United States? City of Indianapolis v. Edmond,10 and Ferguson v. City of Charleston11 foremost among them-demonstrate an affection for privacy and wariness of government justifications that are uncharacteristic of the Rehnquist years.12 The key confession cases-Missouri v. Seibert,13 United States v. Patane,14 and Chavez v. Martinez15-likewise arc toward individual liberty interests in ways not seen during the past thirty years. Numerous less momentous recent opinions, moreover, challenge thinking that has been a mainstay of the Rehnquist years16 and lay down holdings making clear that various pro-prosecution Rehnquist Court precedents should be given a reading more supportive of the liberty interests of suspects and defendants than lower courts heretofore have been inclined to extend.17

The cases do not conform to our expectations because our expectations are dated. Five years do not an era make, but they can demonstrate that one is ending. During the last third of the twentieth century, we witnessed what I favor calling a “conservative reformation” in constitutional criminal justice.18 The conservative reformation was the product of social, cultural, and political forces that arose in opposition to the liberal criminal justice decisions of the Warren and early Burger Courts, unrest in the streets and on the campuses, and increasing crime. A Supreme Court reconstituted by the appointments of President Richard M. Nixon took up the call to recast criminal justice in a conservative light more satisfactory to a nation beset by fears of mounting crime and social disorder. By the early 1980s, the Justices had developed a powerful discourse sufficient to the task-a discourse of conservative reformation. That discourse tapped the vision for reform emanating from critical conservative sentiments in American politics and converted it into a deep-seated jurisprudential antagonism toward the liberal interpretive ways of the 1960s and early 1970s. But rather than translating the antagonism into the law full-force, the discourse introduced moderation with concessions to stare decisis and other inhibiting institutional factors. To finally convert the conservative reform vision into law, the discourse relied heavily on doctrinal dichotomies based on the metaphor of “core” and “periphery” to marginalize and suppress liberal impulses. A “right,” for instance, might be “core” and hence deserving of respect, whereas remedies associated with that right might lie in the “periphery” and thus be subject to restriction in the name of conservative reformation; so went the law relating to the exclusionary rule under the Fourth Amendment, for example.19 Similarly, some applications of a right might be “core,” whereas others would be regarded as extensions into the “periphery” that should be resisted in the name of conservative reformation; so, for instance, went the law under Miranda v. Arizona.20 The discourse also relied on ideological postulates and assurances to assuage concerns that conservatively reformed constitutional law might leave injustices unremedied. Opinions regularly emphasized the fundamental fairness of the system and the need to unshackle the police and the prosecution, consigning risks of unfairness or abuse to a place of secondary importance to be safeguarded by fact-specific provisos and standards of questionable content and force.21

The conservative reformation of criminal justice proved to be among the late Chief Justice’s most impressive accomplishments. By the late 1990s, the reformation of the Court’s jurisprudence in the field was complete. From the Fourth Amendment to the Fourteenth, from harmless error to habeas corpus, criminal justice was rendered more amenable to the forces of law and order. Warren Court precedential icons like Mapp v. Ohio22 and Miranda v. Arizona were not overruled, but their reach was limited, their practical consequences to prosecutors and police lightened, and their capacity to generate new rights and remedies significantly constrained.23 By the same time-and owing in part to the Court’s success in reforming the law-the forces that drove criminal justice toward conservative reformation in the first place eased up. An overriding fear of crime and distress with liberal criminal justice marked the period from the 1970s into the 1990s, but today’s climate is different. Crime is down.24 Liberal criminal justice’s perceived excesses have been checked by the Justices and the lower federal courts (whose capacity to make new criminal justice law, incidentally, has been circumscribed by legislative and jurisprudential cutbacks in habeas corpus). And now, nobody of prominence on the national stage-neither the major political parties, nor their leading candidates and officeholders, nor the nation’s pundits and opinionmakers-is marketing a law-and-order program remotely comparable to President Nixon’s or President Reagan’s.25 A turn has been reached. Social, cultural, and legal forces now press order less urgently and hence permit greater consideration of liberty in the ongoing “ordered liberty” dialectic.

It thus stands to reason that we see a shift toward more liberty-affirming decisions-and, no less importantly, a corresponding shift toward a more liberty-affirming discourse-in the Supreme Court’s criminal justice work. And it is the shift in the discourse, even more than the shifts in winners and losers and decisional orientation, that takes us to the real story. The Supreme Court’s criminal justice opinions no longer manifest the familiar antagonism toward anything suggestive of the liberal style. The cases no longer stress the imperative to constrain and retrench. Interpretive claims and doctrinal moves that became commonplace in criminal justice during the conservative reformation period are today being ignored, countered, and challenged. Where the conservative reformation rested on postulates and assurances about the criminal justice system’s effectiveness, we now witness an open recognition of fallibility in the system and cautious recognition of the Court’s responsibility to regulate in the name of enhanced legitimacy.26 Where the conservative reformation adhered to rigid formalisms, dichotomies, and brackets, we now see a nondoctrinaire approach to legal doctrine that brings questions of constitutional policy to the forefront for open inquiry and pragmatic resolution.27 Where the conservative reformation placed primacy on the values of truth, federalism, and authority in the shaping of criminal justice, today we see the Justices enhancing the normative resources on liberty’s side of the ledger instead.28 Where the discourse of conservative reformation once reigned, we now witness the emergence of a new discourse that, for want of any better label, I call “popularization.” Why “popularization”? Because the new discourse, although mindful of the proprosecution concerns that dominated the past thirty years, seeks to be more inclusive-more attentive to concerns about injustice that arise from the grassroots, richer in its normative vocabulary, less doctrinaire and more transparent in its analyses, and more accessible to a broader audience. It seeks to encourage, recognize, and then harmonize conflicting present-day views, rendering decisions that synthesize the past and the present.

These are the developments that make this era a period of significant change in criminal justice and not merely a time made interesting by idiosyncratic and episodic pro-defendant aberrations. The conservative reformation has run its course; post-reformation criminal justice has begun.

The situation could change, of course. The Court’s decisions and its discourse could revert to the conservative reformation ways to which the nation became accustomed during the last third of the twentieth century. But if that happens, it will be because something new has occurred-the mustering of new and currently unforeseen forces to support the resurrection of a jurisprudential movement that has passed away from natural causes. Today’s popularization motif in criminal justice reflects a distinctive climatic situation-the satiation and retreat of law-and-order forces that had grown strong in the late 1960s, the corresponding open atmosphere that the clearance of those forces created, and the emergence of new liberty-oriented forces which are free to ascend, unimpeded by any dominant set of opposing forces, yet also unaided by any clear endorsement from organized politics that might give them a strong, programmatic boost. Under these circumstances, it is natural for the Court to move toward a popularization discourse. The criminal justice system’s legitimacy deficits (viz., unfairness and unreliability in capital punishment, racial inequities in policing, and jaundiced views of the fundamentals of the Sixth Amendment such as the jury right and the right of confrontation) are coming under open public scrutiny. The Court must respond, lest it be part of the problem. The answer that sufficed during the conservative reformation (viz., the importance of reasserting order because liberty has been permitted to run amok) no longer resonates because the social, cultural, and political environment has changed. Nor is any new answer to be found from contemporary organized politics, for things have gone quiet there insofar as criminal justice is concerned. Lacking other options, the Court understandably listens more broadly, absorbs, and synthesizes.

Such are the wherefores of criminal justice in the Supreme Court today.

II. IMPLICATIONS OF THE END OF THE CONSERVATIVE REFORMATION AND THE EMERGENCE OF POPULARIZATION

Let us turn to some therefores of criminal justice today-implications we may take from the recent turn in criminal justice. There are five I wish to spotlight here.

A. THE CAPACITY TO DO JUSTICE

The most obvious implication of the shift to popularization is the potential for a heightened experience of justice as the system gives greater weight to liberty in the constitutional equation. Mentally retarded and juvenile capital defendants who fall within the protective reach of Atkins and Roper will feel the experience personally and directly. Setting those cases to the side, however, the experiences are apt to be more diffuse and indirect. The direction-shifting cases of the past five years, while significant, simply do not cut all that widely or deeply yet. Myriad doctrines in constitutional criminal procedure-dependence on the exclusionary rule, waiver, and harmless error, to name but three-remain to diminish the practical impact of an individual’s rights; in fact, the elaboration of such doctrines was central to the conservative reformation. The recent cases, furthermore, tend to focus on justice as perceived from the perspective of our institutions and the public that has some moral stake in their operation, rather than from the perspective of the criminally accused individual. The Apprendi line of opinions, for instance, stresses the jury’s historical importance as a structural antidote to judicial power rather than the value of lay decisionmaking as a bulwark of liberty for individuals. The emphasis is on the system’s explicit and implicit protestations and the perceptions of legitimacy that follow.

While taking the institutional perspective on legitimacy runs the risk of dropping the individual out of sight, there are beneficial dimensions that cannot be overlooked. A willingness to take a pragmatic look at systemic legitimacy is not sufficient to deliver justice, but it is necessary. The Court’s favorable turn in that direction is no small matter for a tribunal that not long ago reached the heights of systemic-averse thinking in McCleskey v. Kemp.29 In addition to holding out hope for further justice-seeking developments in jurisprudence (consider, for example, the potential for improved Fourth Amendment law if process were brought into better alignment with substance30), it also could invite progress outside the courts. When judges protect liberty, they may elicit some backlash. But they also make it possible for others to speak in liberty’s name. This seems especially true now, as the Court seeks to develop a constitutional discourse that prizes transparency, inclusiveness, and a pragmatic approach to problems and their solutions.

B. THE DYNAMICS OF CONSTITUTIONAL LAWMAKING IN CRIMINAL JUSTICE

If the first implication concerns the suspects and defendants who are affected by the criminal justice system, the second concerns the thinking and behavior of the people who aim to affect that system through constitutional litigation, or to at least understand the processes of constitutional change. Here, in the wake of criminal justice’s post-reformation turn, three significant dynamics are operating to shape constitutional «sues and their resolution in the Supreme Court. Advocates and engaged spectators will want to track them, for they are the clearest modes of change in these transitional times.

The first dynamic involves the Court’s responsiveness to constitutional critiques of the justice system that have risen to prominence from more-or-less grassroots levels. The prime example is the critique of capital punishment as it is actually practiced in America today (as opposed to earlier-generation critiques of the death penalty as an abstract proposition).31 Encapsulated in the death penalty moratorium movement championed most notably by the American Bar Association,32 the critique has spread widely-as evidenced by the formation of moratorium advocacy groups at the local level, including faithbased organizations and the creation of innocence projects on the nation’s campuses. There seems to be little doubt that the moratorium movement has affected the Court. Almost every allegation from the movement’s basic complaint has drawn the Court’s attention in recent years and received a ruling vindicating the merits of the critique’s core concerns and demonstrating the Court’s intent to remedy the system’s deficiencies.33 The Court also has been responsive to the criticism of racial profiling in day-to-day policing that mounted in the late 1990s, although not nearly so affirmatively as in the death penalty area.34 The Court’s response in both instances has been seen not only in more favorable holdings (especially in the capital punishment area), but also in a looser discourse that releases brackets and blurs dichotomies which heretofore constrained the Court’s capacity to address criticisms of the system. Franker, pragmatic appraisals of the system and its weaknesses are now the order of the day.

The Court’s responsiveness to criticism of the system bears witness to the power of bearing witness. Although the Court’s reformation posture made litigation victories scarcer for criminal defendants during the 1980s and 1990s, lawyers and reformists continued to document the system’s shortcomings with their complaints and with public appeals voiced in a common-sense vocabulary of constitutional values. They captured popular interest and now are gaining a more appreciative audience with the Court, feeding new meaning into the jurisprudence. Yet one might wonder how the Court’s more congenial new posture will affect these movements in the years to come. What will become of the death penalty moratorium movement, for instance, if the Court shows sustained interest in addressing the system’s inadequacies (while still, we may assume, refusing to abolish capital punishment altogether)? Atkins and Roper, with their clear rules protecting the mentally retarded and juveniles, remove two objections to the death penalty in America and leave the moratorium movement with two fewer bases on which to build its coalition. Remaining problems, such as inadequate counsel, prosecutorial misconduct, and racial inequities, have received only limited case-specific responses from the Court recently.35 To the extent that those decisions have symbolic, expressive value but do little to transform the system’s practices, one might expect the movement to continue making headway with its objections. But it could be that the Court’s behavior will provide a legitimating gloss that inhibits the movement’s ability to maintain its adherents and acquire new ones-especially as the proposed curative options are adopted and persistent endorsement of a moratorium thereby begins more and more to resemble a vote for abolition.

The second significant dynamic effecting change in the Court’s criminal justice jurisprudence involves the occasional convergence of different interpretive styles on the Court, allowing for the formation of seemingly improbable majorities. Among the various styles potentially at work in criminal justice cases, three seem particularly notable in this connection. One is an ecumenical internationalism that draws normative content from the laws of foreign nations, proclamations of transnational organizations, and views of respected professional communities. Attractive to Justices Breyer, Kennedy, and Stevens, among others,16 it is a style that calls to mind constitutional arguments in the early 1960s that inaugurated the de facto death penalty moratorium in Rudolph v. Alabama37 and informed the decision in Miranda v. Arizona.38 The second style features the development and application of generalized constitutional principles that transcend the text of the document and synthesize precedents at a high level of abstraction. Favored at times by Justices Stevens and Kennedy,39 this style is reminiscent of the arguments of the late 1960s and early 1970s that yielded decisions like Furman v. Georgia40 and In re Winship.41 The third style involves a professed adherence to the text and original understanding. Advanced most notably by Justices Scalia and Thomas,42 this style evokes memories of the strict constructionism popularized by Justice Black half a century ago.43

Some of the most provocative and ground-moving criminal justice cases in recent years have presented occasions when two of these styles have been able to converge on a liberty-affirming pro-defendant result, even as each can proclaim the lightness of its ways. Roper and Atkins found the first and second styles converging,44 whereas Blakely, Crawford, and Ring afforded chances for the second and third styles to join forces.45 In each instance, convergence was accompanied by expressions of a desire for greater normative robustness in constitutional law-a natural appetite that was suppressed during the conservative reformation heyday.46

The third notable dynamic effecting change in criminal justice jurisprudence involves the Court’s effort to provide frameworks for dealing with the legal challenges that have arisen in the wake of the September 11 tragedies. As a set, the opinions in Hamdi47 Rumsfeld v. Padilla48 and Rasul v. Bush49 portray the Court in a leadership role in the separation-of-powers arrangement. The Court is zoning new constitutional space outside criminal justice that is assigned to the executive and legislative branches, structuring ways of thought on the procedural safeguards to which individuals will be entitled in that new space, and ensuring that its own jurisdiction to oversee developments in that space will be preserved. For our purposes, the significance of this dynamic is that even though the Court does not consider itself to be operating in criminal justice’s domain in these cases, its framing of the issues reinforces the recent liberty-affirming turn in criminal justice twice over-first, by cordoning off criminal justice from this new realm where unusual exigencies rise to challenge liberty interests; second, by stressing that even in that new realm, substantial due process protections will be required.

C. CONSERVATIVE REFORMATION, NOT REVOLUTION

Just as the Court’s current performance in criminal justice appears moderate as measured against expectations, the Court’s dealings in the field during the past thirty years now look nothing like the conservative counterrevolution against liberal ways that various people predicted, declared, wished, or feared. Those years brought disciplined and programmatic change. But it was conservative reform within a framework that accepted the more liberal initiatives of the Warren Court at their core. Mapp and Miranda would not be overruled, but rather cut down to size and confined to their essential holdings.50 Liberal totems remain, but their costs to law-and-order interests have been brought under control.51

The recent turn in criminal justice suggests that the Court’s conservative initiatives in federalism, national power, equal protection, and substantive due process ultimately will yield a similar conclusion. The exertions on all these fronts share numerous commonalities with criminal justice. They all have been driven by clear reform visions forged in organized national politics, with conservative reformation of criminal justice finding its roots in Nixon-era law-and-order politics and contemporary conservative reformation of federalism and other areas stemming from the politics of Ronald Reagan. They all have been translated into constitutional law through similar means and a similar discourse; indeed, examination of the Court’s recent work in federalism and other areas reveals patterns of discourse that parallel those developed in criminal justice during the last third of the twentieth century.52 Given the commonalities, there is every reason to believe that conservative initiatives in federalism and other areas today will face similar constraints-restraining institutional interests that judges know well, along with limits inherent in the social, cultural, and political warrants for conservative reform. And there is every reason to believe they will reach similar endings as well. The political, social, and cultural backing for these newer conservative initiatives-to curtail the national government, affirmative action, and judicial recognition of fundamental rights-stem from the Reagan years. They do not seem nearly as strong as the political, social, and cultural forces that propelled the criminal justice reformation during the last third of the twentieth century-those that arose initially in backlash to the Warren Court and galvanized during the Nixon years. It also is fundamentally more difficult to achieve major change in these areas, given the political economy of constitutional litigation.53

D. JUDICIAL SUPREMACY IN PERSPECTIVE

A fourth implication of the turn in criminal justice goes to how one assesses the Court and its so-called supremacist or juriscentric ways. The Court, and especially the five-Justice conservative majority that frequently prevailed during the last decade, has taken much criticism in that vein for its near-monopolistic control of constitutional meaning in cases involving Congress’s powers under Section 5 of the Fourteenth Amendment,54 its skepticism of Congress and constrained view of legislative power under the Commerce Clause,55 and its unprecedented assertion of authority in Bush v. Gore.56

The criminal justice docket throws subtler light on the subject. There is a popular, outward-looking, and inclusive side to the Court’s assertiveness that complicates any claims about juriscentrism. It is true that the Court has been in the constitutional forefront inventively in its criminal cases, but it has done so as a synthesizer of diverse constitutional perspectives held in society which are not-as they were during earlier times-being assimilated by political leaders and institutions into a charge for judicial action. The Court in effect stands in for political structures that currently are not well equipped to internalize popular constitutional thinking because pathologies in the politics of law-and-order systematically favor increased penalization and devalue liberty interests.57 The Court’s sensitive posture has its merits. It is facilitating a rejuvenation of liberty and introducing a jurisprudence that is less hindered by atomistic conventions about rights and remedies, more open to questions about systemic legitimacy, and candid and pragmatic about its policy resolutions. Yet there are downsides as well. To some minds, the openness can be an uncomfortable nakednessconstitutional argument disrobed of accustomed legal formalisms.58 (Such a reaction could be a case of the law, like the emperor, having no clothes. Legal argument often is criticized for relying on formalisms and framings that obscure or displace responsibility for controversial choices.59) When the Court plays the synthesizing role, there also is a tendency for liberty to be cast from the perspective of the synthesizer-Justices who sit in a privileged and removed position-and at the potential expense of those whose liberty actually tends to be at stake in the criminal justice system.60

E. OUR TIMES IN PERSPECTIVE

All of the foregoing takes us to a fifth capstone implication. Coming to grips with criminal justice’s turn enables us to see contemporary constitutional developments with a greater sense of measure. The point is not just that exciting developments in federalism, national power, and the like look less bold and adventurous when placed in the context that criminal justice affords (though we have seen that is so).61 It is that criminal justice’s own significant turn-ending a three-decade era of conservative reformation and showing a newfound willingness to rule in liberty’s favor-bears the marks of normalcy, too.

Consider, again, the role the Court is playing as assimilator and synthesizer of popularly grounded critiques of the criminal justice system. It would seem to fall comfortably within the lines of process-reinforcement judicial review of the sort associated with John Hart Ely’s Democracy and Distrust.62 Indeed, Ely’s explication sought to defend a wide range of diverse Warren Court initiatives on process-based justifications. Here and now, by contrast, we are concerned with a far more modest enterprise-a discrete subset of constitutional issues arising within the criminal justice system, skewed or deficiently resolved by other institutions due to specific pathologies of law-and-order politics that Justices from the far left and far right of the Court alike acknowledge.61 Recognize that the Court’s supremacist gestures are only superficially so and are better understood as reflecting the Court’s effort to lend synthesized expression to popularly held concerns about the system’s legitimacy, and it becomes even clearer that the forerunner of today’s criminal justice jurisprudence is not free-spirited liberalism circa 1967, but rather the 1930s, 1940s, and 1950s-three decades of notable constitutional transition.

The dynamics that gelled during those early-to-middle years of the twentieth century to move criminal justice forward parallel the three contemporary dynamics we detailed moments ago: the Court’s responsiveness to social criticism; the convergence of different interpretive styles; and an effort to address legal challenges raised by the government’s response to perceived security threats. In the 1930s, 1940s, and 1950s, the Court established its responsiveness to critiques of the system that had yet to be taken up formally by the nation’s political leaders and institutions-namely, criticisms of institutionalized racism in America/14 The Court likewise established its ability to find felicitous convergences of warring interpretive schools-Felix Frankfurter’s Burkean approach to due process,65 Hugo Black’s textual absolutism,66 and William O. Douglas’s equality-sensitive expansionism,67 to name three. And the Court similarly established frameworks to steer new and pressing challenges to liberty-the Japanese internment,68 the actions against German saboteurs69-away from the structures of day-to-day criminal justice.

Taken a step further, these three dynamics-pivotal in redirecting the law sixty years ago, and pivotal today-are actually restatements of three basic items in a conventional job description for the United States Supreme Court. The first dynamic-responsiveness to social criticism-speaks to the Court’s responsibility to listen to “the People” and take note of the diverse constitutional understandings they utter inside and outside the formal processes of lawmaking, particularly when they draw the legitimacy of the Court’s work into question. The second dynamic-convergence of different interpretive styles-speaks to the Court’s responsibility to bridge the divides of ideology, interpretive philosophy, and time, and seek syntheses across perspectives and generations. The third dynamic-the attempt to respond to legal issues raised by threats to national security-speaks to the Court’s responsibility to exercise legal leadership in times of stress, providing helpful frameworks for the productive processing of newly emergent constitutional challenges. In its own way, each dynamic speaks to the Court’s responsibility to manage the contestability of constitutional law credibly and sensitively. Relevant any time and any place, these are just the kinds of obligations that one would expect to figure prominently during a transitional period that presents its share of constitutional critiques yet features no clear constitutional vision or agenda emanating from politics to resolve them. Such times also require an augmentation of constitutional resources. The three dynamics see to that.

For these reasons, it also is unlikely that President Bush’s new appointments to the Supreme Court, replacing Chief Justice Rehnquist and Justice O’Connor, will provoke any sharp new redirection of criminal justice in the near future. The Justices who have been working a conservative reformation in constitutional law these past thirty years-first in criminal justice and now on the frontiers of federalism, national power, and race-have been able to point to substantial cultural and political warrants in support of their labors. And when those warrants have expired, as in the case of criminal justice, the Court has turned to popularization instead. As far as one can tell, neither Chief Justice John Roberts nor Justice Samuel Alito arrives with a perceptible charge from President Bush or the Republican Party to alter the course of criminal justice. Nor did the confirmation process impress any such charge upon them, least of all a directive to bring back the conservative reformation for an extended run.

Service to a constitutional vision that has achieved strong social, cultural, and political backing is one thing. Fealty to a constitutional vision in the absence of such a mandate is another thing altogether. Unless and until there is a change in the sociocultural and political environment, chances are good that popularization will remain the discourse of choice in criminal justice at the Supreme Court.70

1. 536 U.S. 304, 321 (2002) (holding, by a 6-to-3 margin, that the Constitution forbids the execution of a mentally retarded offender) (overruling in part Penry v. Lynaugh, 492 U.S. 302 (1989)).

2. 543 U.S. 551. 579 (2005) (holding, by a 5-to-4 margin, that the Constitution forbids the execution of juvenile offenders who were younger than eighteen at the time the crime was committed) (overruling Stanford v. Kentucky, 492 U.S. 361 (1989)).

3. 536 U.S. 584, 609 (2002) (holding, by a 7-to-2 margin, that the Constitution requires a jury determination-rather than a judge’s rinding-of the existence of aggravating factors necessary to render a defendant eligible for the death penalty) (overruling in part Walton v. Arizona, 497 U.S. 639 (1990)).

4. 541 U.S. 36, 69 (2004) (holding, by a 7-to-2 margin, that the Confrontation Clause forbids the admission of hearsay that is “testimonial”) (overruling Ohio v. Roberts, 448 U.S. 56 (1980)).

5. 448 U.S. 56 (1980).

6. 530 U.S. 466, 482-83, 490 (2000) (holding that the Sixth and Fourteenth Amendments require a jury to find beyond a reasonable doubt any fact-except the fact of a prior conviction-that increases a sentence beyond the statutory maximum; rejecting legislative freedom to assign such a fact to determination by a judge).

7. See, e.g., Blakely v. Washington, 542 U.S. 296, 304-05 (2004) (holding that when a judge imposes a sentence greater than that justified by the facts found by the jury, the Sixth Amendment is violated); King, 536 U.S. at 609 (holding that the Constitution requires a jury determination of the existence of aggravating factors necessary for imposition of the death penalty). In addition to Blakelv and Ring, Apprendi’a progeny include Harris v. United States, 536 U.S. 545, 567 (2002) (holding that the Constitution permits a judge to determine facts giving rise to a mandatory minimum sentence), and United States v. Cotton, 535 U.S. 625. 634 (2002) (holding that the judge’s imposition of sentence enhancement did not, even in light of the government’s failure to specify a drug quantity in the indictment, constitute plain error). Significant decisions on the road to Apprendi are Jones v. United States, 526 U.S. 227, 251-52 (1999) (holding that a carjacking statute’s sentence enhancement for a carjacking resulting in injury constituted a separate element of the carjacking offense, which must be charged in the indictment and decided by the jury), and Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (holding that statutory sentence enhancement for a prior felony conviction constituted a penalty provision and did not define a separate crime).

8. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 90 (1986) (distinguishing between elements of an offense that must be proved to a jury beyond a reasonable doubt and sentencing factors that need only be proved by a preponderance of the evidence, and leaving the legislature the freedom to define such factors); Patterson v. New York, 432 U.S. 197 (1977) (stressing legislative primacy over the definition of elements of a crime and affirmative defenses, and hence the assignment of roles between judge and jury).

9. 533 U.S. 27, 34, 40 (2001) (holding that use of a device-specifically, a thermal imager-“to explore details of (a] home that would previously have been unknowable without physical intrusion” is a “search” within the meaning of the Fourth Amendment and is “presumptively unreasonable without a warrant,” at least in the case of “a device that is not in general public use”).

10. 531 U.S. 32, 44 (2000) (invalidating a vehicle checkpoint established for the primary purpose of intercepting illegal drugs and holding that seizures of motorists at checkpoints established for the “primary purpose” of advancing the “general interest in crime control” are unconstitutional, notwithstanding the presence of secondary purposes, such as highway safety, which standing alone might justify such seizures) (quoting Delaware v. Prouse, 440 U.S. 648, 659 v. 18 (1979)).

11. 532 U.S. 67. 84-86 (2001). In Ferguson. the Court struck down a program that called for drug testing of pregnant women, with positive results of such tests to be forwarded to law enforcement authorities in the event that the patient declined referral for treatment. Assuming that the tests were nonconsensual, the Court held that the “special needs” exception to the Fourth Amendment requirement of individualized suspicion was unavailable because an immediate objective of the search was the acquisition of evidence for law enforcement use. despite the fact that the principal and ultimate purpose of the search was to promote goals distinct from the criminal law. Id.

12. See also Arkansas v. Sullivan. 532 U.S. 769, 772-73 (2001) (Ginsburg, J., joined by Stevens, O’Connor, and Breyer, JJ., concurring) (expressing concern for the “disturbing discretion to intrude on individuals’ liberty and privacy” that is afforded to police by the Court’s Fourth Amendment cases concerning traffic stops); Atwater v. City of Lago Vista. 532 U.S. 318. 372 (2001 ) (O’Connor, J., joined by Stevens, Ginsburg. and Breyer, JJ., dissenting) (same).

13. 542 U.S. 600 (2004) (plurality opinion). In Seibert, the Court ruled that the Constitution required the exclusion from evidence of a second confession that was obtained after the administration of Miranda warnings but subsequent to a first confession that had been obtained in violation of Miranda. See id. at 617; id. at 618 (Kennedy, J., concurring in the judgment). The plurality adopted a test that asks whether intervening Miranda warnings, when considered in the context of the entire police encounter, are effective in advising the suspect of her post-warning rights when the suspect initially confessed in response to interrogation in the absence of the required warnings. See id, at 611-17 (plurality opinion). Justice Kennedy adopted a narrower test that would exclude the second confession only when the police deliberately use a two-step interrogation technique like the one employed in the case. see id. at 617-22 (Kennedy, J., concurring in the judgment).

14. 542 U.S. 630 (2004) (plurality opinion). A plurality in Patane concluded that a defendant’s constitutional rights are not violated until the prosecution seeks to introduce an illegally obtained statement at trial and that (here is no reason to fashion a “fruit of the poisonous tree” doctrine to deter police from interrogating a suspect before reading his Miranda rights because a failure to advise the defendant of his rights is not a constitutional violation in itself. See id. at 636-38. Six justices, however, were more guarded. Justice Kennedy, joined by Justice O’Connor, left open the possibility of excluding derivative fruit in cases that present a greater risk to Miranda’s core concern that coerced incriminating statements not be admitted at trial. See id. at 644-45 (Kennedy, J., concurring in the judgment). Four other justices argued that the “fruit of the poisonous tree” doctrine should govern the admissibility of physical evidence obtained as a result of a statement obtained in violation of Miranda’s warnings requirement. See id. at 645-47 (Souter, J., joined by Stevens and Ginsburg, JJ., dissenting); id. at 647-48 (Breyer, J., dissenting).

15. 538 U.S. 760 (2003). In Chavez, the Court allowed a civil suit to proceed on the (heory that coercive police questioning of the suspect violated substantive due process-a standard that requires a more severe showing of government abuse of power than would a claim brought under the Fifth Amendment. See id. at 779-80 (Souter. J.). Three Justices went notably further, recognizing an individual’s right to seek monetary damages for improper compulsion in violation of the Fifth Amendment. See id. at 789-99 (Kennedy, J., joined by Stevens and Ginsburg, JJ., concurring in pan and dissenting in part). Two other members of the Court left open the possibility of recognizing such a right if it is “clearly shown to be [a] desirable means to protect the basic right against the invasive pressures of contemporary society” and supported by a “realistic assessment of costs and risks.” Id. at 777 (Souter, J., joined by Breyer, J., concurring in the judgment).

16. Sdee. e.g., Thornton v. United States, 541 U.S. 615, 625-32 (2004) (Scalia, J., joined by Ginsburg, J., concurring in the judgment) (criticizing the Court’s pro-police approach to searches of vehicles incident to the arrest of an occupant under the reformation precedent New York v. Belton, 453 U.S. 454 (1981)); id. at 624-25 (O’Connor, J., concurring in part) (expressing dissatisfaction with the state of the law in the area, believing that searches of a vehicle incident to an occupant’s arrest are now being seen as an “entitlement” rather than an exception); id. at 633-36 (Stevens, J., joined by Souter, J., dissenting) (criticizing the Belton rule as unnecessarily lenient in the first instance and erroneously extended by the majority).

17. See, e.g., Tennard v. Dretke, 542 U.S. 274, 289 (2004) (rejecting the Fifth Circuit’s interpretation of Penry v. Johnson, 532 U.S. 782 (2001), to require a “uniquely severe permanent handicap” as too narrow); Banks v. Dretke. 540 U.S. 668, 702-06 (2004) (holding that the defendant did not receive a fair trial when the prosecution concealed evidence that its key witness was a paid informant and that the arrest was a set-up); Groh v. Ramirez, 540 U.S. 551, 557-65 (2004) (finding a search warrant plainly invalid for failing to meet the Fourth Amendment’s particularity requirement; holding that the officer was not entitled to qualified immunity in relying on the warrant); Wiggins v. Smith, 539 U.S. 510, 538 (2003) (finding ineffective assistance of counsel where the capital defendant’s attorney failed to look further than the presentence report for mitigating evidence); Kaupp v. Texas, 538 U.S. 626, 626-33 (2003) (per curiam) (reversing the lower court and holding a confession inadmissible as the fruit of an illegal arrest where the police, without probable cause, took the defendant from his home during the early morning hours to the police station for interrogation); Massaro v. United States, 538 U.S. 500, 509 (2003) (holding that the defendant’s failure to raise his ineffective assistance claim on direct appeal did not bar him from raising it on collateral review); Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (stating (hat the lower courts failed to give full consideration to the substantial evidence that the defendant presented in support of his claim that peremptory challenges were used in a racially discriminatory fashion); Lee v. Kemna, 534 U.S. 362, 387 (2002) (rejecting the especially strict application of a state procedural bar rule); Penry v. Johnson, 532 U.S. 782, 803-04 (2001) (holding unconstitutional jury instructions that failed to adequately instruct the jury on the role of mitigating evidence in the capital sentencing phase); Shafer v. South Carolina, 532 U.S. 36, 48-49 (2001) (holding that where death and life imprisonment are the only two sentencing options, a failure to instruct that parole was unavailable for life imprisonment constituted a denial of due process); Williams v. Taylor, 529 U.S. 362, 398-99 (2000) (holding that a capital defendant was denied his right to effective assistance of counsel where his lawyers failed to investigate and present substantial mitigating evidence to the jury).

18. See Louis D. Bilionis, Conservative Reformation, Popularization, and the Lessons of Reading Criminal Justice as Constitutional Law. 52 UCLA L. REV. 979 (2005).

19. See, e.g., Illinois v. Krull, 480 U.S. 340, 349-55 (1987) (establishing a good faith exception to the Fourth Amendment exclusionary rule where police rely on statutory authority); United States v. Leon, 468 U.S. 897, 912-22 (1984) (adopting a good faith exception where officers reasonably rely on a warrant later found to be unsupported by probable cause); Stone v. Powell. 428 U.S. 465, 494-95 (1976) (denying habeas corpus review of claims that evidence was obtained in violation of the Fourth Amendment, provided the defendant is given a full and fair opportunity to litigate the claim at trial); United States v. Janis, 428 U.S. 433, 459-60 (1976) (“[T]he judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.”); United States v. Calandra, 414 U.S. 338, 349-52 (1974) (holding the exclusionary rule inapplicable to grand jury proceedings).

20. 384 U.S. 436 (1966). Beginning with then Justice Rehnquist’s 1974 opinion in Michigan v. Tucker, 417 U.S. 433, 439 (1974) (reasoning that Miranda safeguards are “prophylactic rules”), a series of reformation decisions characterized Miranda rights as prophylactic rules that overshoot the true reach of the Fifth Amendment and which therefore should be closely construed. see. e.g., Davis v. United States, 512 U.S. 452, 460 (1994) (taking a narrow view of what constitutes an invocation of the right to counsel under Miranda because a broader view “would needlessly prevent” police questioning); Oregon v. Elstad, 470 U.S. 298, 314 (1985) (limiting the scope of the “fruit of the poisonous tree” doctrine in the Miranda context); New York v. Quarles, 467 U.S. 649, 655-56 (1984) (establishing a “public safety” exception to the requirement of Miranda warnings).

21. See Bilionis, supra note 18, at 998-1015.

22. 367 U.S. 643 (1961).

23. See Bilionis, supra note 18, at 993-1015 (discussing and analyzing conservative reformationist changes in constitutional criminal justice during the last third of the twentieth century). For earlier accounts spotlighting dimensions of the conservative turn in criminal justice during that period, see, among others, Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319 (1977), Stephen A. Saltzburg, Foreword: The Flow and Ebb of Constitutional Criminal Procedure in the Warren and Burger Courts, 69 GEO. L.J. 151 (1980), Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466 (1996), and Robert Weisberg, Foreword: Criminal Procedure Doctrine: Some Versions of the Skeptical, 76 J. CRIM. L. & CRIMINOLOGY 832 (1985).

24. For statistics showing the decline in the crime rate, see, for example, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CRIME FACTS AT A GLANCE, http://www.ojp.usdoj.gov/bjs/glance.htm (last visited Feb. 2, 2006) (indicating that serious violent crime rates have fallen significantly between 1993 and 2002). For information on the decline in prison populations, see ALLEN J. BECK & PAIGE M. HARRISON, U.S. DEP’T OF JUSTICE, PRISONERS IN 2000, at 1 (2001), available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/p00.pdf (noting the first decline in state prison populations in decades). But see PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP’T OF JUSTICE, PRISONERS IN 2003, at 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p03.pdf (noting recent prison population increases).

25. See, e.g., Ted Gest, The Evolution of Crime and Politics in America, 33 MCGEORGE L. REV. 759, 764-65 (2002) (arguing that the issue of crime has fallen from the national agenda for three reasons: a precipitous drop in the crime rate, the depolarization of the issue along party lines, and a general focal shift from street crime to terrorism); see also Markus Dirk Dubber, Criminal Justice Process and War on Crime, in THE BLACKWELL COMPANION TO CRIMINOLOGY 49, 64 (Colin Sumner ed., 2004) (arguing that the war on crime has lost steam and noting that sentences in some states have begun to decrease after years of increase).

26. See Bilionis, supra note 18, at 1048-51.

27. See id. at 1052-54.

28. See id. at 1054-58.

29. 481 U.S. 279 (1987); see Louis D. Bilionis, The Unusualness of Capital Punishment, 26 OHIO N.U. L. REV. 601, 618-20 (2000) (discussing how McCleskey embraced an atomistic paradigm that obscured systemic solutions that could enhance the quality of justice delivered).

30. Fourth Amendment law currently posits a general rule that its mandated process-probable cause and a warrant, or facts triggering a recognized exception to the warrant requirement-applies irrespective of the severity of the offense for which the search or seizure is being undertaken. That posture is rife with potential for misalignment, as crimes of little substantive significance-e.g., failure to wear a seatbelt while driving-may result in most or all of the same search-and-seizure intrusions and indignities that befall a suspect charged with a far more serious crime. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 354-55 (2001) (holding that an arrest based on probable cause of seatbelt violation does not violate the Fourth Amendment).

31. For discussions of the difference between the two critiques, see Austin Sarat, Between (the Presence of) Violence and (the Possibility of) Justice: Lawyering Against Capital Punishment, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES 317, 326-27 (Austin Sarat & Stuart Scheingold eds., 1998), Louis D. Bilionis, Eighth Amendment Meanings from the ABA’s Moratorium Resolution, LAW & CONTEMP. PROBS., Autumn 1998, at 29, 30-36, and Austin Sarat, Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics, LAW & CONTEMP. PROBS., Autumn 1998, at 5, 5-15.

32. For discussions of the death penalty moratorium movement, see Bilionis, supra note 31, and Symposium, The ABA’s Proposed Moratorium on the Death Penalty, LAW & CONTEMP. PROBS., Autumn 1998, at 1; see also George Ryan, Former 111. Governor, Moratorium on Death Row Executions, Address at the Gillis Long Poverty Law Center at Loyola University New Orleans (Mar. 31, 2003), in 5 LOY. J. PUB. INT. L. 1 (2003).

33. See Roper v. Simmons, 543 U.S. 551, 579 (2005) (holding that the Constitution forbids the execution of a defendant who was younger than eighteen at the time the crime was committed) (overruling Stanford v. Kentucky, 492 U.S. 361 (1989)); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Constitution forbids the execution of a mentally retarded offender) (overruling in part Penry v. Lynaugh, 492 U.S. 302 (1989)); see also cases cited supra note 17.

34. See Arkansas v. Sullivan, 532 U.S. 769, 772-73 (2001) (Ginsburg, J., concurring) (expressing concern that the Court’s rule that an officer’s subjective motivations are irrelevant for Fourth Amendment purposes presents grave potential for abuse); Atwater, 532 U.S. at 371-72 (O’Connor, J., dissenting) (“[T]he recent debate over racial profiling demonstrates all too clearly [that] a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual.”). Although inexplicit on the point, the decision in Edmond summons the same content. see City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (forbidding roadblocks designed for general crime control purposes in part because of the unbridled discretion they confer upon law enforcement officials).

35. See cases cited supra notes 17, 33.

36. See, e.g., Roper, 543 U.S. at 579 (Kennedy, J.) (“[T]he overwhelming weight of international opinion against the juvenile death penalty …, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”); Foster v. Florida, 537 U.S. 990, 992-93 (2002) (Breyer, J., dissenting from denial of certiorari) (citing court decisions from the United Kingdom Privy Council and the European Court of Human Rights in support of the claim that lengthy delay awaiting execution is inhumane and cruel); Patterson v. Texas, 536 U.S. 984, 984 (2002) (Stevens, J., dissenting from denial of stay of execution) (noting the debate in other countries concerning the execution of juveniles); Atkins v. Virginia, 536 U.S. 304, 317 n.21 (2002) (Stevens, J.) (citing a brief filed by the European Union in support of the claim that execution of the mentally retarded has become cruel and unusual, and also crediting a “broader social and professional consensus”-including the views of professionals in the field of mental health-and the views of “widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions”); Knight v. Florida, 528 U.S. 990, 995-97 (1999) (Breyer, J., dissenting from denial of certiorari) (citing “[a] growing number of courts outside the United States” that have held that a lengthy delay in administering the death penalty is cruel, including decisions from Zimbabwe and India, as well as the Convention Against Torture); Elledge v. Florida, 525 U.S. 944, 945 (1998) (Breyer, J., dissenting from denial of certiorari) (same); Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (Stevens, J., dissenting from denial of certiorari) (same); see also Lawrence v. Texas, 539 U.S. 558, 576-77 (2003) (Kennedy, J.) (citing decisions from other nations in an opinion invalidating the criminalization of consensual sodomy among adults).

37. 375 U.S. 889, 889-90 (1963) (Goldberg, J., dissenting from denial of certiorari) (arguing that international opinion against the death penalty draws the penalty’s constitutionality into question).

38. 384 U.S. 436, 486-90 (1966) (pointing to other countries’ experiences in support of imposing restrictions on police interrogation). For a discussion of this interpretive style in recent cases, see Bilionis, supra note 18, at 1044, 1054-58.

39. See, e.g., Chavez v. Martinez, 538 U.S. 760, 789-90 (2003) (Kennedy, J., concurring in part and dissenting in part) (arguing that “[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear” and that “[c]onstitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place”); McMillan v. Pennsylvania, 477 U.S. 79, 96 (1986) (Stevens, J., dissenting) (contending that “any component of the prohibited transaction that gives rise to both a special stigma and a special punishment” must be subject to the reasonable doubt standard).

40. 408 U.S. 238 (1972).

41. 397 U.S. 358 (1970). For a discussion of this interpretive style, see Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law, 96 MICH. L. REV. 1269, 1283-87, 1308-15 (1998).

42. See, e.g., Blakely v. Washington, 542 U.S. 296, 304-05 (2004); Crawford v. Washington, 541 U.S. 36, 42-50 (2004); Kyllo v. United States, 533 U.S. 27, 38-40 (2001); see also Hamdi v. Rumsfeld, 542 U.S. 507, 554-601 (Scalia, J., dissenting) (asserting textualist understanding of criminal process as precluding executive detention in the absence of a congressional suspension of the writ of habeas corpus).

43. See, e.g., Adamson v. California, 332 U.S. 46, 68 (1947) (Black, J., dissenting); Belts v. Brady, 316 U.S. 455, 474 (1942) (Black, J., dissenting).

44. See Roper v. Simmons, 543 U.S. 551, 563-65, 574-79 (2005) (invalidating the juvenile death penalty in an opinion that relies on international views and also recognizes the Court’s role in developing principles of proportionality and moral appropriateness in capital sentencing); Atkins v. Virginia, 536 U.S. 304, 312, 317 n.21 (2002) (invalidating the death penalty as applied to mentally retarded offenders, employing a similar argument).

45. See Blakely, 542 U.S. at 306-07 (interpreting the Sixth Amendment jury right as more protective, relying on a textual originalism argument that also accommodates generalized principles related to the presumption of innocence and the reasonable doubt standard); Crawford, 541 U.S. at 50-56 (interpreting the Confrontation Clause as more protective, relying on a textual originalism argument that also accommodates expansive principles of individual liberty); Ring v. Arizona, 536 U.S. 584, 609 (2002) (holding that the Constitution requires a jury determination-rather than a judge’s finding-of the existence of aggravating factors necessary to render a defendant eligible for the death penalty; interpreting the jury right more expansively in reliance on a textual originalism argument that also accommodates generalized principles related to the presumption of innocence, the reasonable doubt standard, and imperatives of capital sentencing).

46. See Bilionis, supra note 18, at 1044-47 (discussing how the logic of reformation decisions postponed normative inquiry and development that may be taken up now that reformation objectives have been achieved).

47. Hamdi, 542 U.S. at 533-34 (holding that the government must provide a U.S. citizen captured on a foreign battlefield with a meaningful opportunity to challenge his “enemy combatant” status); id. at 531 (“We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.”); id. at 535 (observing that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens” and that the separation of powers contemplates a judicial role in the protection of those rights).

48. 542 U.S. 426, 447, 451 (2004) (holding that a detainee’s petition for a writ of habeas corpus was brought in the wrong court). But see id. at 460-65 (Stevens, J., dissenting) (arguing that the Court should address the merits of the case because the government’s actions in response to terrorism “have created a unique and unprecedented threat to the freedom of every American citizen” and that “[a]t stake is nothing less than the essence of a free society;” noting that “[u]nconstrained Executive detention for the purposes of investigating and preventing subversive activity is the hallmark of the Star Chamber” and that “if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny”).

49. 542 U.S. 466, 480-81 (2004) (providing aliens held at Guantanamo Bay with access to the federal courts to challenge the legality of their detention).

50. See Bilionis, supra note 18, at 993-98, 1006-15.

51. Id.

52. See id. at 1015-25.

53. See id. at 1025-27.

54. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 530-36 (1997) (permitting Congress to enact prophylactic measures pursuant to its section 5 power only if the legislation is proportional and congruent to identified Fourteenth Amendment violations); see also Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (invalidating Congress’s abrogation of state sovereign immunity from suit under a provision of the Americans with Disabilities Act); United States v. Morrison, 529 U.S. 598, 623 (2000) (invalidating a civil remedy provision of the Violence Against Women Act as beyond Congress’s Section 5 power); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92 (2000) (invalidating Congress’s abrogation of state sovereign immunity from suit under a provision of the Age Discrimination in Employment Act); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999) (invalidating Congress’s abrogation of state sovereign immunity from suit under a provision of the Lanham Act); FIa. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank. 527 U.S. 627, 647 (1999) (invalidating Congress’s abrogation of state sovereign immunity from suit under a provision of the Patent and Plant Variety Protection Remedy Clarification Act). But see Tennessee v. Lane, 541 U.S. 509, 531 (2004) (upholding civil remedy against a state under Title II of the Americans with Disabilities Act as a valid exercise of Congress’s section 5 power, at least insofar as it applies to access to courthouses); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 740 (2003) (holding that the Family and Medical Leave Act satisfies the “proportionality and congruence” standard set forth in Boerne).

For thoughtful analysis and criticism of the Court’s decisions in this area, see Robert C. Post. The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture. Courts, and Law, 117 HAKV. L. REV. 4 (2003) (arguing that the Court responds to and regulates cultural change), and Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943 (2003).

55. U.S. CONST, art. I, § 8, cl. 3; see United States v. Lopez, 514 U.S. 549, 561 (1995) (holding that the Gun-Free School Zones Act exceeded Congress’s Commerce Clause authority because possessing a gun near a school was not economic activity that substantially affected interstate commerce); see also Morrison, 529 U.S. at 617 (invalidating a portion of the Violence Against Women Act on the same grounds). But see Sabri v. United States, 541 U.S. 600, 605-08 (2004) (distinguishing Utpez and upholding a statute criminalizing the offering of bribes to government officials as a valid exercise of the spending power despite the absence of a connection between the federal funds and each bribe); Reno v. Condon, 528 U.S. 141, 148 (2000) (upholding the Driver’s Privacy Protection Act of 1994 as a valid exercise of Congress’s Commerce Clause power).

For thoughtful analysis and criticism on this subject, see Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80, 85 (2001) (noting that Rehnquist Court doctrines of judicial review “have resulted in a growing disrespect for Congress”).

56. 531 U.S. 98 (2000). Criticism of Bush v. Gore is legion. For broader criticisms of the Court’s alleged supremacist leanings, sec Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. RKV. 26 passim (2000), and Rachel E. Barkow, More Supreme than Court: The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 241 (2002) (arguing that the Court “ignores the existence of political questions” in its quest for supremacy). For additional insight, see H. JEFFERSON POWELL, A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN HISTORY AND POLITICS 136-37 (2002) (criticizing the current Court’s encroachment upon matters of judgment that earlier constitutional thinkers in the nation’s history thought reserved for Congress), and Larry Kramer. The Supreme Court. 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 4, 33-49 (2001) (arguing that the public, not the Court, was intended to control constitutional meaning).

57. For a discussion of these pathologies, see Donald A. Dripps, Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-But-Shallow, 43 WM. & MARY L. REV. 1, 46 (2001) (identifying dismay with law-and-order politics and the absence of legislative consideration of statutory regulation favoring liberty interests), and William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 527-58 (2001); see also Bilionis, supra note 18, at 1043-47.

58. See generally Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 589 (1990) (“I never thought Oliver Wendell Holmes and the legal realists did us a favor by pointing out that all these legal fictions were fictions: Those judges wise enough to be trusted with the secret already knew it.”).

59. See, e.g., DANIEL A. FARBER & SUZANNA SHERRY, DESPERATELY SEEKING CERTAINTY: THE MISGUIDED QUEST FOR CONSTITUTIONAL FOUNDATIONS 43 (2002) (criticizing Justice Scalia’s originalist position as promulgating a myth of judging and the law, and accusing him of adopting such a stance knowing that it “is simplistic if not misleading, so as to foster the right attitude toward legal issues”); Gordon S. Wood, Comment, in ANTONIN SCALIA, A MATTER OF INTERPRETATION 49, 63 (1997) (arguing that “[t]he real source of the judicial problem that troubles Justice Scalia lies in our demystification of the law”).

60. See supra text accompanying and following notes 27-28.

61. See supra text accompanying notes 47-49.

62. See JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).

63. For an example of a so-called liberal jurist’s recognition of the pathologies, see Atkins v. Virginia, 536 U.S. 304, 315 (2002) (Stevens, J.). For an example of a so-called conservative jurist’s recognition of them, see Ring v. Arizona, 536 U.S. 584, 610-13 (2003) (Scalia, J., concurring). For further discussion, see Bilionis. supra note 18. at 1044-47.

64. See generally Francis A. Alien, The Judicial Quest for Penal Justice, 1975 U. ILL. L.F. 518, 522 (suggesting that the rise of totalitarian regimes in Europe produced anxiety about the exertion of governmental force through the criminal justice system); William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2206-19 (2002) (noting the influence of strategies employed by groups such as the ACLU and the NAACP Legal Defense and Education Fund on the development of criminal procedure); Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 62-66 (1996) (linking the Warren Court’s criminal procedure decisions to societal concerns with race, poverty, and a renewed sense of responsibility in the administration of criminal justice following the war against the Nazis); Herbert L. Packer, Two Models of the Criminal Process. 113 U. PA. L. REV. 1, 65 (1964) (asserting the centrality of civil rights and poverty issues in the development of criminal procedure).

65. See, e.g., Rochin v. California, 342 U.S. 165, 168-71 & 170 n.4 (1952) (enlisting Edmund Burke in support of cautious, evolving due process methodology); Wolf v. Colorado, 338 U.S. 25, 26-28 (1949), overruled by Mapp v. Ohio, 367 U.S. 643 ( 1961 ) (characterizing due process jurisprudence as a “gradual and empiric process of ‘inclusion and exclusion'”) (quoting Davidson v. New Orleans, 96 U.S. 97, 104(1877)).

66. See, e.g., Griffin v. Illinois, 351 U.S. 12, 16-17 (1956) (Black, J.. plurality opinion) (interpreting the Due Process and Equal Protection Clauses to require criminal procedures that avoid invidious discrimination); Adamson v. California, 332 U.S. 46, 68 (1947) (Black. J., dissenting) (arguing that the Fourteenth Amendment was intended to make the Bill of Rights applicable to the states and that such an application is beneficial because it constrains judges with text); Belts v. Brady, 316 U.S. 455, 474 (1942) (Black, J., dissenting) (advocating resort to the Sixth Amendment guarantee of assistance of counsel as fundamental, in part because doing so checks judicial discretion in constitutional interpretation); Johnson v. Zerbst, 304 U.S. 458, 462-63, 468 (1938) (construing the Sixth Amendment to require appointment of counsel for indigent defendants).

67. See, e.g., Douglas v. California, 372 U.S. 353, 355, 357-58 (1963) (holding that an indigent criminal defendant is entitled to appointed counsel on first appeal of right and that practice to the contrary draws an unconstitutional line between the rich and poor); Lambert v. California, 355 U.S. 225, 227, 230 (1957) (invalidating a statute that criminalized failure to register, in the absence of knowledge of or notice of the duty to register, for fear of unequal enforcement of the law to the detriment of disadvantaged defendants).

68. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944).

69. See, e.g., Ex parte Quirin, 317 U.S. 1 (1942).

70. Even if Chief Justice Roberts and Justice Alito were to embrace the philosophies of the conservative reformation four-square, an immediate change in direction would not he in the cards. Chief Justice Rehnquist and Justice O’Connor were often in dissent in the recent criminal cases of note, resisting the shift in direction and championing the conservative reformation. See Bilionis, supra note 18, at 1028-40 (discussing the recent direction-shifting decisions and noting the frequent dissenting votes of Chief Justice Rehnquist and Justice O’Connor).

Louis D. BILIONIS*

* Dean and Nippen Professor of Law, University of Cincinnati College of Law. © 2006, Louis D. Bilionis.

Copyright Georgetown University Law Center Jun 2006

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