Foreword: Criminal Procedure in Winter

Abstract

The 2016 election was a turning point in constitutional criminal procedure. Donald Trump’s victory, and its accompanying opportunity to reshape the Supreme Court, will have effects that will likely reverberate for decades. This Essay, written as the Foreword for the Loyola of Las Angeles Law Review's issue dedicated to October Term 2016, takes stock of where constitutional criminal procedure stands today and offers some predictions on how the shape and tenor of criminal procedure might evolve in the years to come. The future that looms is one where the Supreme Court will be even less willing to meaningfully regulate criminal justice than it has been in recent decades. At best, the Court will adhere to a narrow formalism, one that enforces constitutional text without meaningfully implementing larger constitutional values.

Present circumstances will dismay those eager for reform in criminal justice. But they provide an overdue occasion for criminal-procedure scholars to reexamine fundamental assumptions. For too long, scholars have looked to courts as the solution to democratic failure on criminal justice issues. But where we stand today, and the history that has led us here, show why this belief ultimately amounts to little more than magical thinking. Courts cannot, and should not, be expected to stand against strong political will, at least for any sustained period.

Going forward, criminal procedure scholars should draw their gaze away from courts, and should instead devote renewed energy to structure, politics, localism, and power in criminal justice. That inquiry are important even for those whose goal is social change, and not merely deepening our understanding, because it can help reformers understand where their efforts can be most effectively directed.

Note: This Foreword was originally written in summer 2017 for the Loyola of Los Angeles Law Review’s issue dedicated to the Supreme Court's October Term 2016. I will likely substantially revise it in light of the retirement of Justice Kennedy and his certain replacement by a new, likely more conservative, Justice.

Keywords: Criminal Procedure, Politics, 2016 Election, Trump, Gorsuch