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Abstract:
For years, lawyers and law professors could give an abbreviated but accurate description of judicial administration of the Constitution in stating that when constitutional values come to court, judicial scrutiny on their behalf generally takes one of two forms, mere rationality review or heightened scrutiny. Like many models, this one glossed a considerably grainier reality, but overall it captured Supreme Court decisions very well. This model, called here the old scrutiny, still has countless users and proponents, but it no longer describes American constitutional law as it has been stated and practiced by a majority of the Rehnquist Court. This Article will explore the reasons and methods of the Justices who make up this new majority, and the narrative of constitutional history they have produced that is calculated to legitimate the legal transformation they are leading.

Part I of the Article explains that the old scrutiny fails to comfortably describe the most important new decisions, doctrines, and debates of the Rehnquist Court because in disciplined fashion, the new majority has been purging the old scrutiny, overruling or displacing the precedents that symbolized its commitments and methods and installing in their stead decisions that reflect a reordered hierarchy of constitutional values. Part II of the Article explains that the resulting jurisprudence is not a patternless passel of opinions that share in common only their disenchantment with the old scrutiny's objectives and manners. Rather, a new scrutiny is emerging with a logic and structure of its own, centering upon a conception of constitutional well-being, here termed measured reasonableness. The structure and texture of this new conception are defined by four distinct techniques which the Article explores, complicating the picture but also lending it comprehensiveness and coherence.

Judicial scrutiny, Constitutional law

Abstract:
This article discusses Justice Anthony Kennedy's bold brand of centrism on issues of liberty, termed grand centrism, and distinguishes it from minimalist centrism, primarily represented by Justice O'Connor. Grand centrism recognizes the criticality of popular faith in a constitutional center of shared values. Kennedy does not lose sight of the imperative of clarity for the non-legal world. His grand centrism recognizes the Court's capacity to inspire faith and engagement, not only in the legal community but in American citizens generally. Unlike with minimalist centrism, compromise is not the goal, and therefore the losing side may not be satisfied at all in a particular case.

The article reviews several scholars' attempts to list what values are in fact shared today by Americans under the Constitution and then discusses grand centrism's self-conscious maintenance of those values. Kennedy is a grand centrist only with regard to liberty jurisprudence. With federalism and national power issues, Kennedy's centrism is more purposely positioned between more extreme views, termed conceptual moderation. And when the Constitution's grand scheme is at issue, Kennedy is more the dutiful lawyer than the grand centrist, strictly adhering to set rules of law. The article also discusses Kennedy's judicial personam in light of political centrism, and it responds to critics of Kennedy.

Supreme Court, Judicial Philosophy, Constitutional Law

Abstract:
This essay is part of a symposium asking whether there has been a significant change in direction in the Supreme Court's constitutional criminal justice jurisprudence recently. There indeed is a pronounced change. The forces that drove criminal justice toward a "conservative reformation" from the 1970s into the 1990s are now spent. The Court's challenge today is to maintain criminal justice's legitimacy in an environment driven by neither an overriding fear of crime nor a strong demand for further pro-prosecution conservative reform. In this new climate, other forces more conducive to affirming liberty in the liberty-versus-order equation can flow more freely. A redirection of criminal justice naturally follows.

In this new transitional period, three different dynamics operate to shape the Court's criminal justice jurisprudence. The first involves the Court's responsiveness to constitutional critiques of the justice system that have arisen from more-or-less grassroots levels. The second involves the occasional convergence of three different interpretive styles on the Supreme Court - an ecumenical internationalism reminiscent of the early 1960s, a generalizing of constitutional principles reminiscent of the late 1960s and early 1970s, and a textualist originalism popularized in the last fifteen years. The third dynamic involves the Court's effort to provide frameworks for dealing with the challenges that have arisen in the wake of the September 11 tragedies.

Each dynamic represents a resource to be tapped in the waging of law reform. Each also represents a different judicial function that regularly operates to shape constitutional law: the Court's obligation to respond to public critique, its obligation to seek synthesis within and across generations, and its obligation to provide frameworks for dealing with newly emerging constitutional challenges (and thereby contribute leadership that helps the other departments of the national government and the states).

Criminal Justice Jurisprudence

Abstract:
Legal scholars tend to segregate the Supreme Court's criminal justice cases from the rest of the Court's constitutional jurisprudence. Leading accounts of the Rehnquist Court, for instance, understandably will focus on the Court's noteworthy work in federalism, national power, race, and religion, while scarcely making even passing mention of the Court's work in criminal justice. The consequence is an incomplete picture of constitutional law that neglects the lessons that might be taken from criminal justice to illuminate our understanding of the Court and its jurisprudence.

Criminal justice is an integral component of American constitutional law that needs to be integrated into the narrative of our constitutional times. When we view criminal justice in that spirit, we discover that post-Warren Court criminal justice jurisprudence has been the conceptual, theoretical, and strategic forerunner of the Rehnquist Court's prominent and groundbreaking activity in federalism, race, religion, and the like. By including criminal justice in the picture, we can recognize with greater clarity that the nation is in a period of conservative constitutional reformation that first began some thirty-five years ago in the criminal justice area. It was there that a distinctive cultural, political, and legal dynamic took shape to support the cause of conservative constitutional law reform. And it was there that the Court developed a distinctive conservative law reform discourse to bring about change in the law. That discourse has since fanned out across the constitutional landscape, bringing about conservative reform in one area after another.

Yet even as conservative reformation proceeds in several areas today, it has ended in criminal justice. The forces that inspired the conservative reformation of criminal justice are spent; a social, cultural, and political turn has been reached. Criminal justice has entered a new period of constitutional development that is significantly more liberty affirming than stereotypes of the Rehnquist Court would lead one to expect. The Court's recent decisions indicate that we have entered a period of popularization in criminal justice, with the development of a new corresponding discourse of popularization to sustain it. What is more, there is reason to think that criminal justice may once again be in the vanguard, and that the distinctive discourse of popularization can and will spread to other areas of constitutional law.

Criminal Justice, Reformation, Constitutional Law