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Originalists, Politics, and Criminal Law on the Rehnquist Court


Rachel E. Barkow


New York University School of Law


George Washington Law Review, Vol. 74, 2006
NYU Law School, Public Law Research Paper No. 06-15

Abstract:     
One of the most important legacies of the Rehnquist Court's criminal law jurisprudence is its reinvigoration of the Constitution's jury guarantee. The Court has made clear that legislators cannot pass laws mandating increases in punishment unless those laws are applied by juries, not judges. The Court has therefore rejected existing sentencing laws in numerous states and the federal system, and sentencing policy is under scrutiny as never before.

The Court's sentencing cases are not only significant for their impact on day-to-day plea bargaining and trial practice in the criminal justice system; they also provide a concrete and important example of the power of law and legal methodology - and not simply politics - in Supreme Court decisionmaking. The sentencing decisions are out of step with what attitudinalist political scientists would have predicted from the right-leaning Court. The cases are the product of an alliance between Justices that the attitudinalists view as the extreme left and right of the Court; they are the product of a partnership between the Court's self-proclaimed originalists and those members of the Court who are most sensitive to the role of the judiciary in protecting criminal defendants' rights from majority politics. This area of criminal law is therefore an important reminder of the significance of legal methodology to case outcomes.

In addition to documenting the importance of the jury cases, this Article uses those cases as a springboard for a larger analysis of the relationship between originalists, politics, and criminal law on the Rehnquist Court. By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. While a review of those cases confirms the conventional view that the Court's liberal bloc voted for criminal defendants more frequently than the Court's conservatives in non-unanimous cases, the more interesting pattern is the variation among the Court's conservatives in non-capital criminal cases in which the five conservatives disagreed among themselves. In the fifty-five non-capital criminal cases in which the Court's conservatives did not vote as a bloc, Justices O'Connor, Scalia, and Kennedy each voted for the defendant twenty-four times, Justice Thomas voted for the defendant in eighteen cases, and Chief Justice Rehnquist in fourteen cases. In several of the most important constitutional decisions of that period, including but not limited to the jury cases, the conservative originalists voted for defendants while the pragmatist conservatives ruled for the government. The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.

Number of Pages in PDF File: 38

Keywords: criminal law, criminal procedure, constitutional law, originalism, attitudinal models, sentencing

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Date posted: June 22, 2006  

Suggested Citation

Barkow, Rachel E., Originalists, Politics, and Criminal Law on the Rehnquist Court. George Washington Law Review, Vol. 74, 2006; NYU Law School, Public Law Research Paper No. 06-15. Available at SSRN: http://ssrn.com/abstract=910563

Contact Information

Rachel E. Barkow (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-992-8829 (Phone)
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