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

Conservative anger with the Warren Court actually had been percolating for years before 1968. During the 1930s, it was economic conservatives who championed judicial activism in defense of economic liberties while liberal Democrats argued for judicial restraint.69 This relationship reversed itself in the 1950s as a result of the Court's modern civil rights jurisprudence-especially its decisions involving desegregation.70 Indeed, the shifting controversy about judicial activism and the role of the Court was the result of broader shifts in American politics and internal divisions within the New Deal political coalition itself. Democratic presidents beginning with Franklin Roosevelt managed the cross-pressures within their own political coalition by discouraging judicial activism in economic policy but encouraging it for civil rights. During this period, African-American voters were a vital voting bloc in Democratic presidential politics, but Southern Democrats and the segregationist state-level party organizations that elected them dominated Congress. To manage this divided coalition, Democratic presidents strategically used their control over government litigation policy and judicial selection to advance civil rights reform while saving their political capital in Congress for economic policies and other legislative goals.71 In cases such as Shelley v. Kraemer,72 Brown v. Board of Education,73 and Baker v. Carr74 it was the Department of Justice that filed crucial briefs encouraging the Court to intervene and reshape American race relations.75 Moreover, in appointing Justices, these presidents were attentive to civil rights concerns and a prospective nominee's view of racial equality.76

As long as the Court's activist alliance with the New Deal Democratic coalition centered on civil rights, criticisms came primarily from the South and could be dismissed as a reactionary defense of the increasingly unpopular southern social order. By the mid-1960s, however, the Warren Court's liberal activism began to expand into other areas of social policy, including into controversial policy areas such as prayer in schools, the right to privacy, obscenity, and the rights of accused persons.77 As it did, conservative hostility to judicial activism spread and galvanized New Right opposition to the Warren Court.

A. THE "LAW AND ORDER" CAMPAIGN IN 1968: THE ATTACK ON JUDICIAL ACTIVISM

In 1968, the Nixon campaign seized on criminal justice as a politically acceptable way to attack judicial activism. The link between crime and judicial activism was crucial to Nixon's "southern strategy," allowing Republicans to tap into southern resentment of the Court without having to repudiate the substance of civil rights reforms. This allowed the GOP to drive a wedge deep into the New Deal Democratic political coalition, separating its southern Democratic congressional base from its more progressive presidential electoral party. Key to the strategy was connecting rising crime rates to race, to the Court's activism, and to the Democratic Party's law enforcement policies.78 Thus, Nixon's "law and order" campaign centered as much on Johnson's Justice Department and Attorney General Ramsey Clark, as it did on the Warren Court and the need to appoint "strict constructionists" to the bench.79