Rehnquist Court and the Death Penalty, The

Georgetown Law Journal, Jun 2006 by Chemerinsky, Erwin

This Symposium results from two stunning rulings in favor of criminal defendants during October Term 2003: Crawford v. Washington1 and Blakely v. Washington.2 I suggest these rulings must be understood as part of a broader trend concerning the Rehnquist Court. In its last few years, the Rehnquist Court has ruled in a way one would predict a more moderate Court would act. This was especially evident in a series of rulings concerning the death penalty, where the Rehnquist Court overturned death sentences on a number of different grounds.3

I believe that there were three distinct phases of the Court between the time William Rehnquist was elevated to Chief Justice in 1986 to his passing in 2005. The first phase, from 1986 to about 1992, was characterized by great deference to the executive and legislative branches. Rarely during this time did the Court invalidate federal, state, or local laws.4 Instead, the Court frequently proclaimed the need for great judicial deference to the elected branches of government.5

The second phase, from 1992 through about 2002, witnessed a wholesale shift in the Court's philosophy. During this period, the Court was aggressive in invalidating federal statutes and overruling even recent precedents.6 The Court's penchant for striking down federal laws and overturning precedent was perhaps most notable in its federalism decisions limiting the scope of Congress's powers and greatly expanding state sovereign immunity.7

Since 2002, however, the Court has been decidedly more moderate. Two years ago, for example, the Court upheld affirmative action by colleges and universities8 and invalidated a state law prohibiting private consensual sodomy.9 Contrary to the preceding period, every federalism case in the last few years has been resolved in favor of federal power and against states' rights.10 Moreover, many of the most significant cases argued during October Term 2004 were resolved in a way that progressives, not conservatives, would prefer. For example, the Court invalidated the death penalty for crimes committed by juveniles," affirmed the use of eminent domain for economic development,12 and expanded the protections of federal civil rights statutes.13

There seems to be a simple explanation for this final phase of the Rehnquist Court: it was easier to get one vote than two. Especially in controversial areas, Justices Stevens, Souter, Ginsburg, and Breyer frequently voted together, as did the bloc of Chief Justice Rehnquist and Justices Scalia and Thomas.14 More often than not, the more liberal wing comprised of Justices Stevens, Souter, Ginsburg, and Breyer prevailed by attracting the support of either Justice O'Connor or Justice Kennedy, thereby producing 5-4 decisions that favored more progressive results.15 Indeed, of the seventy-six decisions in October Term 2004, nineteen were decided by a 5-4 margin, and in only four of these closely divided decisions was the majority comprised of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. This is far different from prior years when this more conservative group was more often the majority in 5-4 decisions.16

I do not want to overstate this. There certainly have been many instances, especially in the area of criminal justice, where the Rehnquist Court ruled as one would predict a conservative Court to act. In 2003, for instance, the Court upheld twenty-five-year-to-life sentences for shoplifters under California's three strikes law.17 Further, in October Terms 2003 and 2004, there were ten Fourth Amendment cases, nine of which were decided in favor of law enforcement and against criminal defendants.18 But overall, the Rehnquist Court in its last few terms was quite different than in its earlier years, ruling-in a striking number of cases-in a more progressive way than expected.

In this Article, I want to explore one aspect of the Rehnquist Court's more progressive phase: its death penalty decisions. Part I of this Article describes a surprising number of recent rulings overturning death sentences. Part II then offers an explanation for this development, to wit, that a majority of the Court was (and continues to be) deeply concerned about how the death penalty is administered in the United States. The work of the Innocence Projects and others in exposing both the flaws of the death penalty's administration and the reality of innocent people facing execution has had a profound effect on the Justices. To be sure, no Justices currently on the Court take the position espoused by Justices Brennan, Marshall, and Blackmun that the death penalty is inherently unconstitutional.19 But over the last few years, an increasing number of Justices have expressed grave concerns about the administration of the death penalty in the United States, as reflected in the cases described in Part I. The Rehnquist Court's decisions overturning death sentences and imposing new procedural requirements in capital cases occurred at the same time as other decisions mandating new protections for criminal defendants, such as in Crawford and Blakely. It is difficult to tie these developments together except by proximity; however, the changes, though motivated by different concerns, together have significantly changed the landscape of criminal law.