What If Criminal Lawmaking Becomes Trustworthy?

Abstract

One common theoretical perspective posits that courts should assume a counter-majoritarian role in criminal law because the political process systematically disfavors the interests of criminal suspects and defendants. Recent shifts in the politics of crime, however, complicate this perspective’s assumptions, raising the paradoxical possibility that welcome improvements in the politics of crime will weaken the theoretical case for counter-majoritarian judicial decisions. This essay tentatively considers whether, if at all, courts’ interpretive approach should change in response to any continuing moderation of historic “tough on crime” politics. It suggests that while arguments for narrow construction of criminal statutes will remain strong for the foreseeable future, a more moderate and competitive politics of crime could justify greater judicial deference, at least at the margins and in some limited circumstances, to democratic choices regarding criminal procedure.