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

Elsewhere we have argued that this approach best explains the "New Federalism revolution" in which the Rehnquist Court reasserted the idea of state sovereignty under the Tenth and Eleventh Amendments and restricted congressional authority under the Commerce Clause and Section 5 of the Fourteenth Amendment.54 By examining party platforms, judicial confirmation hearings, and other political developments between the 1960 and 1990s, we demonstrated that the Court's jurisprudential shift was prefigured by, and connected to, the rise of the New Right regime's views regarding federalism. In this Article, we employ the same approach to the Rehnquist Court's criminal justice jurisprudence.

In considering the Court's role in criminal justice from the perspective of the political regime, it is important to rethink the assumptions embedded within the countermajoritarian framework. When the Court sides with the individual against the State in such cases, it may not be protecting minority rights against majoritarian preferences. Indeed, more likely than not, the exercise of judicial review against state and local laws is a reflection of the Court's role in extending the policy preferences of elected national elites to local outliers. Even when the Court overturns a federal statute, it will often be asserting the preferences of some political groups within the national governing coalition against others.

Moreover, we argue that the Court's shifting criminal justice jurisprudence is the result of the interaction of many different and complex institutional forces that operate within the American political regime. Some of these are deeply embedded and operate at a cognitive level, such as a shifting intellectual environment that led to the demise of a liberal "rehabilitative ideal" in favor of an ideology of "crime prevention through incapacitation" and an emphasis on retribution.55 Others may be more readily apparent, such as the role of media in shaping political views of crime and criminal justice.56 Still others may be purely strategic, such as individual calculations made by elected politicians or interest groups to use crime issues for short-term electoral gain.57 The relative influence of these various institutional forces and factors in causing change in the Court's jurisprudence is less important than identifying clearly a measure of the combined forces, or a measure of the regime's criminal justice values as a whole.

As the chief organizing agents of American political institutions, political parties play a critical role channeling such forces into coherent political values and policy positions, or what might be called "regime values." Thus, examining the parties' positions is a useful way for understanding changing regime values over time. Indeed, the two major parties developed distinct and different approaches to criminal justice and law enforcement policy during the 1960s. While Republicans began to focus on "law and order," Democrats emphasized "due process" and social justice. So long as the New Deal Democratic regime controlled the elected branches of the national government, the Court's jurisprudence in broad terms reflected their approach to criminal justice. As the New Right Republican regime gradually asserted its control over the elected branches, the Court's jurisprudence reflected that shift. By the early 1990s, the Court had adopted most of the major policy changes sought by the New Right. The cleavage between the parties on crime, however, was fundamentally altered by the Clinton Administration, which successfully neutralized crime as an electoral cleavage issue. By the end of the 1990s, the parties had adopted nearly identical policy positions on crime, and, consequently, cross pressures and cleavages within the New Right regime became more important in the Court's jurisprudence.