Criminal Justice After the Conservative Reformation

Georgetown Law Journal, Jun 2006 by 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