Criminal Justice after the Conservative Reformation
Posted: 21 Mar 2006 Last revised: 30 May 2010
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).
Keywords: Criminal Justice Jurisprudence
JEL Classification: K14
Suggested Citation: Suggested Citation