Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court's Criminal Justice Jurisprudence, The

Georgetown Law Journal, Jun 2006 by Clayton, Cornell W, Pickerill, J Mitchell

INTRODUCTION

In 1968, Republican presidential candidate Richard Nixon pledged to appoint conservative, strict constructionist judges to the federal courts.1 In the view of many New Right Republicans, the Warren Court had formed an activist partnership with liberal Democrats to liberalize broad swaths of American social policy.2 They were not wrong; there is abundant recent scholarship demonstrating how the Court's post-1930s jurisprudence, and especially its new "fundamental liberties" jurisprudence was intimately tied to the New Deal-Great Society political regime.3

Upset with the Court's liberal activism, Republicans in 1968 promised a "judicial counter-revolution."4 Whether their intention was to reduce the level of judicial policymaking or simply to promote a more conservative brand of judicial policymaking,5 Nixon's four appointments to the Court, including Chief Justice Burger, disappointed many New Right conservatives.6 Under the Ronald Reagan and George H. W. Bush presidencies, however, the GOP appointed four more Justices to the Court and elevated William Rehnquist to Chief Justice. In many areas of law the Rehnquist Court finally brought about the long-promised conservative judicial "counter-revolution." Its outlines are now evident in areas ranging from federalism to abortion, from the Takings Clause to the separation of church and state. In these and other areas the Court has curbed the expansion of Warren Court precedents and moved constitutional jurisprudence markedly to the right.7 In criminal justice the counter-revolution was even more pronounced. For example, by the time the Court's new federalism jurisprudence began to take hold in 1992,8 the Court had already carved out a "good faith" exception to the exclusionary rule,9 established a "harmless error" exception to Miranda,10 and reaffirmed the constitutionality of the death penalty.11

Just as the Warren Court's "fundamental liberties" jurisprudence was prefigured by the New Deal-Great Society political regime, we argue that the Rehnquist Court's criminal justice jurisprudence was directly linked to the electoral ascendancy of the New Right. Particularly important was the decision by the GOP in 1968 to make crime and law enforcement central cleavage points in electoral politics. In so doing. Republican candidates used criminal justice not only as an electoral wedge issue, but also as their principal instrument for attacking judicial activism and the Warren Court's role in implementing the New Deal-Great Society political agenda.

While the Rehnquist Court has implemented most of the core criminal justice policies sought by the New Right, several recent cases raise interesting questions about the nature of its relationship to that regime. For example, in Atkins v. Virginia12 and Roper v. Simmons,13 the Court held that the application of the death penalty to the mentally retarded and to juveniles violates the Eight Amendment; in Dickerson v. United States,14 it turned back a congressional effort to overturn the Miranda rule; and in Hamdi v. Rumsfeld15 and Rasul v. Bush,16 the Court rejected the Bush Administration's argument that detainees in the "war on terror" were not entitled to an independent review of their detention as enemy combatants. Collectively, these decisions raise questions of both how the Court is related to the New Right's political agenda and the divisions that may exist within the New Right itself.

In the following Part we explain the political construction of judicial power, or the "political regimes" approach to understanding the role of the Supreme Court in American democracy. Part II examines the rise of the New Right, focusing on the GOP's use of criminal justice policy as a partisan cleavage issue in presidential elections and its linkage to criticism of judicial activism. Here we also consider two developments complicating the relationship between the New Right and the Rehnquist Court: the Democratic Party's success in neutralizing criminal justice as an electoral issue during the 1990s and the emerging cross-pressures in the New Right's constitutional views that came to the fore as it consolidated control over the elected branches. Part III explores the Rehnquist Court's change of direction in criminal justice jurisprudence during the 1980s and early 1990s, tying it directly to politics in the elected branches.

I. THE COURT AND THE POLITICAL REGIME: THE POLITICAL CONSTRUCTION OF JUDICIAL POWER

While the authority of American courts to strike down laws contrary to the Constitution has existed at least since Marbury v. Madison,17 the term "judicial review" did not become a prominent or controversial feature of constitutional debate until the Lochner era in the early twentieth century.18 The reason was two-fold: First, it was not until the early decades of the twentieth century that the Court began to regularly employ the power of judicial review,19 and second, judicial review became politically controversial when the Court began using it regularly to invalidate legislation important to the policy agenda of the national governing coalition then in power.20