Temporal Adversarialism, Criminal Justice, and the Rehnquist Court: The Sluggish Life of Political Factfinding
38 Pages Posted: 17 Jul 2006
This paper argues that recent, arguably liberal criminal procedure decisions of the Rehnquist Court in its dying days were limited to issues involving adversarial factfinding - factfinding modeled on an ideal of deliberative jury decisionmaking based upon evidence resulting from competitive investigation by lawyer-adversaries. These decisions embraced a broad range of issues, including the Crawford, Blakely, and Hamdi cases, covering the Confrontation Clause, sentencing procedures, and military justice. The Court permits deviations from this ideal for good reasons - such as the special dangers created by the War on Terrorism - though the Court tries to minimize the degree of these deviations. But the Court's criminal procedure decisions outside this area, with the possible exception of the death penalty, have remained starkly conservative. The disparity in perspectives between these two areas, this paper concludes, is due to modern moderately conservative values inherent in the adversarial model, including, for example, a populist and anti-elitist preference for lay decisionmaking, localism, patriotism, and respect for the lessons of the past. The allure of these values, the paper maintains, may ensure the continuing appeal of temporal adversarialism (the word temporal emphasizing the importance of slow, deliberative decisionmaking and slow social change, if any) to the Roberts Court, a model that also has appeal to some liberal Justices.
Keywords: temporal, adversarialism, Rehnquist, political, jury, adversaries, Crawford, Blakely, Booker
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