Cautious Liberalism

28 Pages Posted: 29 Aug 2006


This article argues that the decisions of the U.S. Supreme Court in the area of criminal justice during the last terms of the Rehnquist Court reflect what is best described as a cautious liberalism. A comprehensive study of all criminal justice decisions during the 2000 to 2004 terms of the Rehnquist Court reveals several interesting patterns that illustrate this approach. Overall, the Court was quite centrist on criminal justice issues, moving to the left in some areas while staying to the right on others. From a criminal defendant's point of view, the Court took two steps forward and one step back. Even more interestingly, the decisions about when to step forward and when to step back seem to reflect a fairly nuanced sensitivity to public opinion. Taken as a whole, the Renquist Court picked its battles in its recent criminal justice liberalism. Furthermore, no single coalition of justices was responsible for more than one-third of the pro-defendant constitutional decisions during these terms. While the Court's four liberal justices voted for the defendant consistently, the identity of the conservative "defectors" that created the resulting majorities varied greatly. Responsibility for the Rehnquist Court's most recent pro-defendant decisions was spread relatively thinly among its conservative members. In this sense, cautious liberalism was polycentric.

Suggested Citation

Kennedy, Joseph Edward, Cautious Liberalism. Georgetown Law Journal, Vol. 94, p. 1537, 2006, UNC Legal Studies Research Paper No. 927221, Available at SSRN:

Joseph Edward Kennedy (Contact Author)

University of North Carolina ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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