Cautious Liberalism

Georgetown Law Journal, Jun 2006 by Kennedy, Joseph E

INTRODUCTION

The questions that animate this Symposium are whether the Rehnquist Court became more liberal on criminal justice issues in its last years and, if so, why. The contributors who agree that a more liberal pattern exists supply a variety of interesting and useful answers to the why question. Mark Tushnet notes a basic difference between the Rehnquist Court's reluctance to regulate street policing through the Fourth Amendment and its qualified willingness to regulate what goes on inside the courtroom.1 Erwin Chemerinsky describes the evolution of a more critical approach towards the administration of the death penalty.2 Lou Bilionis tells a story of conservative reformation in the wake of a successful but now complete conservative revolution in criminal justice.3 Our colleagues from political science, clayton and Pickerill, tell a somewhat similar story about growing cross-pressures within the conservative political regime once Democrats had effectively neutralized crime as an electoral issue.4 Finally, Jeff Fisher offers a law-centered story about formalism and categorical rules to explain Crawford v. Washington5 and Blakely v. Washington,6 two of the most surprising decisions amongst the Court's recent pro-defendant rulings.7

When a conservative Court turns liberal on criminal justice issues, it is only natural to reconsider old arguments about the connections between a Justice's ideology or political beliefs and the votes the Justice casts and the opinions she writes. The connections between ideology and the work of the Court have been a particularly hot topic of late among legal scholars,8 and reassessing the connections between ideology and constitutional adjudication is a central part of the contributions to this Symposium.

My contribution, for its part, focuses on these ideological connections but attempts to cast them in a new light. Taken as a whole, the decisions of the U.S. Supreme Court in the area of criminal justice during the last few years of the Rehnquist Court reflect what is best described as a cautious liberalism. The hallmarks of liberalism are easy to see: a series of landmark decisions in which the Court has taken the defendant's side over the government's9 and decisions that have each provoked widespread commentary among legal scholars and Court watchers.10 The cautious quality is less obvious but becomes evident when one moves beyond the headline cases and takes a look at the Court's criminal justice docket for the last five Terms as a whole. This larger picture reveals a Court that is overall quite centrist on criminal justice issues, moving to the left in some areas while staying to the right on others. For example, during the same years that the Court overturned decades of guideline sentencing practice, it increasingly narrowed restrictions on habeas review of criminal convictions." From a criminal defendant's point of view, the Court has taken two steps forward and one step back. More importantly, the decisions about when to step forward and when to step back seem to reflect a fairly nuanced sensitivity to public opinion. On issues that are highly salient with the public such as the death penalty or the suppression of searches and seizures under the Fourth Amendment, the Court has been moving with public opinion, refusing to suppress relevant evidence on Fourth Amendment grounds but ruling increasingly in the defendant's favor in death penalty cases. Taken as a whole, the Court has picked its battles in its recent criminal justice liberalism.

When one looks more closely at the composition of the majorities that have produced the Court's most recent constitutional decisions in the area of criminal justice, an equally interesting pattern emerges. No single combination of Justices is responsible for more than one-third of the pro-defendant decisions: while the Court's four liberal justices vote together for the defendant consistently, the identity of the conservative "defectors" that create the resulting majority varies greatly.12 Justices Kennedy and O'Connor were well ahead of their fellow conservatives in this regard, but neither Justice Kennedy nor former Justice O'Connor can properly be regarded as reliable pro-defendant votes. Responsibility for the Court's most recent pro-defendant constitutional rulings is spread relatively thinly amongst its conservative members. The Court's recent liberalism in criminal justice is in this sense polycentric.

This carefully selective, polycentric liberalism is best understood as a response to three related features of the politics of crime during the eighties and nineties that I refer to collectively as "populist punitivism": a deeply entrenched distrust of judges among the public; a deterioration in the deliberative quality of the legislative politics of crime; and a radical increase in the severity of punishment in general and the level of incarceration in particular. At the heart of cautious liberalism is an attention to public salience-the ways in which certain types of stories about criminal justice capture the public's attention and others do not. Ultimately, cautious liberalism is a story about how and when Supreme Court Justices can challenge populist, punitive crime policies without appearing to do so.13