Carefully examine “How to Read a Research Article” from Section II of your text (Spohn & Hemmens, 2012, pp. 42-45). Using the 10 criteria for review found in the text, prepare a critical analysis of one of the four articles which immediately follow the analyses techniques:
RESOURCE: Spohn, C., & Hemmens, C. (2012) Courts: A text/reader (2nd ed.).
Your analysis should focus on whether or not you believe that the author provided a persuasive analysis and your reasoning for your conclusion. It is recommended that your post contain approximately 400 words.
1. What is the thesis or main idea in this article?
2. What is the hypothesis?
3. Is there prior literature related to the hypothesis?
4. What methods are used to support the hypothesis?
5. Is this a qualitative study, a quantitative study, or a mixed methods study?
6. What are the results and how does the author present the results?
7. Do you believe that the author provided a persuasive argument? Why or why not?
8. What does the article add to your knowledge of the subject?
9. What are the implications for criminal justice policy that can be derived from this article?
10. Who is the intended audience of this article?
The Rehnquist Court and Criminal Justice
An Empirical Assessment
Christopher E. Smith
When scholars articulate conclusions about institutions, processes, and social phenomena, they inevitably summarize and generalize. Generalizations, if produced thoughtfully and supported by evidence, can reflect accurate insights. Yet generalizations, especially those concerning human behavior and complex social phenomena, by their very nature diminish or omit inconsistencies, cross-currents, and complexities that would provide a more complete picture of developments. Thus, there are risks that the often-repeated generalizations about the subjects of scholarly study will obscure details that are essential for comprehensive understanding of trends and consequences.
When the U.S. Supreme Court is the subject of study, it is especially important to analyze trends in the context of other developments. The Court plays a central role in shaping law and public policy affecting criminal justice. During William Rehnquist’s tenure as Chief Justice, the Court has gained a reputation as a consistent supporter of expanded discretionary authority for state legislatures, prosecutors, police officers, and corrections officials. In part, these generalizations flow from the Rehnquist Court’s sharp contrast with the rights-expanding performance of the Warren Court era (Cox, 1968). As a result, the actions of the Rehnquist Court tend to be summarized as being conservative and advancing a diminution of constitutional rights for criminal suspects, defendants, and convicted offenders. For example, in the words of John C. Domino in his book Civil Rights and Liberties: Toward the 21st Century (1994),
SOURCE: Smith, Christopher E. (2003, May). The Rehnquist Court and Criminal Justice: An Empirical Assessment. Journal of Contemporary Criminal Justice, 19(2), 161–181.
By rethinking established modes of constitutional adjudication and by returning to constitutional literalism, the Rehnquist Court has tipped the scales in favor of states’ rights, community interests, law and order, and majority rule, bringing us nearly full circle to the judicial philosophy of the pre-Warren era. (p. 285)
Despite the consistency of certain trends, the Rehnquist Court is not a monolithic entity that inevitably acts in a predictable fashion. The human beings who comprise the Court form shifting and sometimes surprising internal majorities whose decisions expand governmental authority in many instances yet impose limits on police and prosecutors in other circumstances. One way to gain a more nuanced and complete understanding of the Rehnquist Court’s cases affecting criminal justice is to empirically examine the decision making of the Court and its justices. Empirical data about judicial decision making do not adequately describe and provide a basis for analyzing all important aspects of the Supreme Court’s performance and consequences, especially with respect to doctrinal developments and policy impacts. However, empirical data can provide systematically developed, comprehensive “snapshots” of the decisions by the Court and its justices. The use of such data can help to alleviate the limiting effects of generalizations based on perceived trends affecting specific doctrinal issues. This article uses empirical data about the Supreme Court to look beyond the Rehnquist Court’s trends and reputation and thereby identify less recognized underlying characteristics and developments.
For several decades, scholars in political science have analyzed court decisions through quantitative techniques (e.g., Segal, 1986). The use of these techniques requires that cases be classified and coded. As a result, several large databases of court decisions have been developed that provide scholars with categories of information about each court decision. The analysis of Supreme Court trends in this article is based on case classifications that emulate those in the Supreme Court Judicial Data Base. The Supreme Court Judicial Data Base provides information about legal issues and each justice’s vote for all U.S. Supreme Court decisions since 1953 (Spaeth, 2001).
Cases were individually coded for the purposes of this article rather than relying on the Supreme Court Judicial Data Base. The coding for the Supreme Court Judicial Data Base is described as follows:
Although the criteria for the identification of issues are hard to articulate, the focus here is on the subject matter of the controversy rather than its legal basis. . . . The objective is to categorize the case from a public policy standpoint. (Spaeth, 2001, p. 70)
In contrast with the public policy emphasis of the coding for the Supreme Court Judicial Data Base, this article focused on the legal basis for the Supreme Court’s decisions. For example, in the Supreme Court Judicial Data Base, Fourth Amendment cases are classified under the categories search and seizure; search and seizure, vehicles; and search and seizure, Crime Control Act. In addition, Fourth Amendment cases may also be found with alternative classifications such as civil rights, juveniles, in which they may be mixed with other kinds of cases. Cases concerning juveniles cover such Fourth Amendment matters as drug testing within schools or school locker searches as well as other legal issues affecting juveniles’ rights. Thus, for the purposes of this article, the author classified individual cases based on the legal issues involved in the cases rather than seek to find, for example, where all of the Fourth Amendment cases might be located in various categories within the Supreme Court Judicial Data Base.
All of the Supreme Court’s decisions from the 1995 term through the 2000 term were examined to determine which ones are related to criminal justice. This study broadly defines criminal justice-related cases. In addition to cases concerning statutory interpretations of substantive criminal law and constitutional interpretations affecting criminal defendants’ rights, the study includes decisions concerning civil rights litigation that affects officials in the criminal justice system. These cases concerning civil litigation were included because civil rights lawsuits against police and corrections officials significantly influence the development of policies, practices, and training in the criminal justice system (Smith & Hurst, 1997). This study excludes immigration cases, such as those concerning the deportation of individuals with criminal records.
The time period for study was selected to examine the Rehnquist Court during its era of most stable composition. The same nine justices have been on the Court since the appointment of Justice Stephen Breyer in 1994. Thus, this study is able to examine an actual court with consistent composition rather than a changing institutional entity that bears the name “Rehnquist Court” merely because of the tradition of labeling Supreme Court eras according to the identity of the chief justice. The time period for this study begins with the 1995 term rather than with the arrival of Justice Breyer in 1994 to avoid the risk that Breyer’s initial performance might have been distorted by the “freshman effect,” a much-debated hypothesis concerning new justices’ initial inconsistency and lack of confidence in participating in the Court’s group decision-making process during the first term of service (e.g., Heck & Hall, 1981; Melone, 1990; Snyder, 1958).
Each criminal justice–related case was classified according to the legal issue raised in the case. If there was more than one issue in a case, the case was classified according to the issue that received the most attention in the Court’s opinions or the issue that caused the greatest division among the justices. There were no multiple-issue cases in which the issue that caused the greatest division was not also the issue that received the most extensive attention in the opinions. In an effort to maintain consistency, the classifications were checked against the case syllabi provided on Cornell University’s Web site for Supreme Court decisions (see http://www.law.cornell.edu) as well as against yearly postterm coding for all Supreme Court civil rights and liberties cases done by a team of three professors in preparation of annual supplements for a Supreme Court textbook (e.g., Hensley, Smith, & Baugh, 1998).
The outcome of each case was classified as “liberal” or “conservative,” as is commonly done in empirical studies of judicial decisions. The definitions of liberal and conservative are modeled on the classifications in the Supreme Court Judicial Data Base in which “liberal decisions in the area of civil liberties are pro-person accused or convicted of a crime, pro-civil liberties or civil rights claimant, pro-indigent, pro-Native American, and anti-government in due process and privacy” (Segal & Spaeth, 1989, p. 104). By contrast, conservative decisions in criminal justice cases favor the government’s interests in prosecuting and punishing offenders over recognition or expansion of rights for individuals. The votes of each justice were similarly classified according to these definitions.
The Supreme Court’s Criminal Justice Docket
Cases concerning criminal justice comprise a substantial portion of the Supreme Court’s docket. Indeed, if the Supreme Court’s cases were divided among categories defined by the titles of law courses taught at universities, criminal law and criminal procedure would have few rivals for their claim to a lion’s share of the Court’s attention. The contemporary predominance of criminal justice cases on the Supreme Court’s docket is consistent with the importance of such cases as a central focus of the Court’s attention since the 1960s (O’Brien, 1990). As indicated in Table 2.5, during the period of the Supreme Court’s 1995 term through its 2000 term, an era in which the Court produced full written opinions after oral arguments in only 74 to 85 cases each year (e.g., Coyle, 2000; Greenhouse, 1996), the Court decided between 22 and 35 criminal justice cases each year. The table includes constitutional law decisions, such as those defining individuals’ rights in the criminal justice system, and statutory interpretation decisions concerning such issues as substantive criminal law and sentencing guidelines.
Table 2.5 highlights two striking but infrequently acknowledged characteristics of the Supreme Court’s decision making and impact on criminal justice. First, although most scholarly analyses of the Supreme Court’s impact on criminal justice focus on constitutional law decisions affecting individuals’ rights and the scope of officials’ discretionary authority, most of the Supreme Court’s decisions concerning criminal justice do not address constitutional issues. During a 6-year period, the Supreme Court devoted more attention to cases concerning sentencing guidelines, habeas corpus procedures, and federal substantive criminal law than to cases defining the constitutional rights of suspects, defendants, and convicted offenders. Unlike constitutional decisions about searches and seizures that affect thousands of encounters between citizens and police every day throughout the country, these nonconstitutional cases typically concern relatively narrow issues of statutory interpretation that affect only limited numbers of federal criminal prosecutions. Even the Court’s primary nonconstitutional issue of broad potential applicability, habeas corpus procedures, actually affects only a limited number of cases because of the relatively small number of incarcerated offenders who file such petitions in the federal courts (Hanson & Daley, 1995).
Second, the relatively small number of constitutional decisions affecting criminal justice, typically only a dozen per year in recent terms, highlights the need to avoid exaggerating the highest court’s importance in shaping case outcomes when constitutional rights are at issue. Although the Court has made many important decisions concerning individuals’ rights and its decisions provide guidance for decision making by other courts, the Supreme Court examines and settles only the tiniest fraction of constitutional claims that arise annually in criminal justice cases. State supreme courts, state intermediate appellate courts, and federal courts of appeals throughout the country each determine the outcomes in many more cases affecting individuals’ rights in the criminal justice system than does the U.S. Supreme Court (Maguire & Pastore, 2001). Despite its image as the ultimate institutional guardian of constitutional rights, the contemporary Court decides very few such cases. In reality, the protection of constitutional rights in criminal justice rests most heavily on the knowledge, ethics, and professionalism of police officers and others who make discretionary decisions about the investigation and prosecution of crimes. State courts and lower federal courts provide a potential check on officials’ improper decisions, but the U.S. Supreme Court is seldom involved in evaluating the propriety of decisions in the justice system. There is no doubt that Supreme Court justices aspire to select for decision those criminal justice issues that will have broad applicability. However, the small numbers of constitutional issues they choose to examine annually as well as the percentage of the justices’ decisions that endorse and expand officials’ actions at the expense of individuals’ claims of right (see Table 2.8) effectively limit the Supreme Court’s practical role and impact as the protector of rights in criminal justice.
Table 2.5 Annual Number of Constitutional and Nonconstitutional Criminal Justice Cases Decided by the U.S. Supreme Court From the 1995 Term Through the 2000 Term
Table 2.6 shows the nature and frequency of criminal justice issues addressed by the Rehnquist Court during six terms. Among constitutional cases, issues arose most frequently concerning the Fourth Amendment. The predominance of search and seizure cases is not surprising in light of the many technical details affecting the legal rules on this subject. There is no single rule or principle that defines rights and limits of official authority under the Fourth Amendment. Instead, the Court typically defines search and seizure guidelines by balancing governmental investigatory interests against individuals’ privacy interests in specific situations. A variety of issues arise with great regularity because of the frequency with which police officers conduct stops and searches in diverse contexts and unique factual circumstances.
Among nonconstitutional issues, the significant attention given to habeas corpus procedures reflects the effort by the Rehnquist Court majority to limit opportunities for convicted offenders to mount collateral attacks on their convictions within the federal courts (Yackle, 1994). In addition, the Court has interpreted a recent statute (Anti-Terrorism and Effective Death Penalty Act) that places congressional limitations on habeas corpus.
Table 2.6 Issues in the U.S. Supreme Court’s Criminal Justice Cases From the 1995 Term Through the 2000 Term
The Court’s attention devoted to the interpretation of federal criminal statutes is a predictable consequence of two ongoing developments affecting the criminal justice system. First, Congress has acted with increasing frequency to “federalize” crimes by enacting new statutes defining offenses and punishments (Gest, 2001). Because there are more federal crimes than in the past, the Supreme Court should expect more numerous requests to clarify the meaning of the statutes that define those crimes. Second, the expansion of federal law enforcement agencies and their activities inevitably produces more investigations, prosecutorial decisions, and new factual circumstances for which the meaning and applicability of criminal laws may be disputed.
In Table 2.7, the major categories of criminal justice cases are divided according to Supreme Court term to discern any evidence of patterns or changes of attention to specific issues.
If one hypothesized that the Supreme Court justices harbor specific agendas concerning areas of law and policy they seek to shape with their decisions (Baum, 1989), then patterns of issues accepted for hearing and decision might reveal preferences and priorities. Although there are specific reasons, as previously discussed, for the Fourth Amendment, habeas corpus, and federal criminal law to comprise important segments of the Court’s docket, there is little indication that annual figures on cases concerning these issues can be attributed to anything other than unpredictable patterns of particular cases brought to the Court each year and the justices’ inclinations to tackle specific cases. Cases concerning habeas corpus, federal crimes, and search and seizure have been accepted for hearing each year, sometimes with more cases than in the past but with no clear trajectory. By contrast, the Court’s increased attention to right to counsel and capital jury instructions in recent terms may reflect the emergence of these issues due to increased public attention and political controversies surrounding the death penalty (e.g., Wilgoren, 2002). The highly publicized problems with erroneous convictions and inadequate representation of capital defendants may have drawn the Court’s attention to these issues that did not previously secure a regular place on the docket.
Table 2.7 Number of Case Decisions for Major Issue Areas From the 1995 Term Through the 2000 Term
a. The Supreme Court also decided a fourth habeas corpus-related case in the 1995 term. Unlike the nonconstitutional procedural issues in other habeas corpus cases, this case concerned the application of the Habeas Corpus Suspension Clause to and the constitutionality of the habeas corpus provisions of the Anti-Terrorism and Effective Death Penalty Act (Felker v. Turpin, 1996).
Empirical Measures of Supreme Court Decision Making in Criminal Justice
In deciding criminal justice cases, the Rehnquist Court has been characterized as “moving to the Right” (Lock, 1999, p. 90). This characterization stems from the generally accepted observation that the Court’s majority is composed of conservatives who have “been active in narrowing or overturning many Warren and Burger Court precedents that were favorable to the rights” of individuals in the criminal justice system (Fliter, 2001, p. 183). None of the contemporary justices had the experience of representing criminal defendants in their prejudicial careers as attorneys (Fortunato, 1999). The only justice whose work as an attorney included advocacy for constitutional rights, Ruth Bader Ginsburg, focused on the applicability of the Equal Protection Clause to gender discrimination cases (Cole, 1984). The other justices’ prejudicial careers gave them legal experience in government, representing corporate interests, or both (e.g., The Supreme Court at Work, 1990). The majority of Warren Court members had personal experiences that gave them an empathic understanding of the risk that suspects and defendants could experience maltreatment at the hands of abusive law enforcement officials (Smith, 1990). By contrast, most of the Rehnquist Court justices’ contacts with criminal justice came through experiences as lawyers on the staffs of county prosecutors, state attorney generals, or the U.S. Justice Department (i.e., Sandra Day O’Connor, William Rehnquist, Antonin Scalia, Clarence Thomas, David Souter). Moreover, most of the Rehnquist Court justices were selected by Republican presidents who emphasized “law and order” crime control policies and sought to identify judicial appointees who would reflect those views. Because the Supreme Court’s decisions are driven by the values and policy preferences of its members (Baum, 1989), one would expect the contemporary Supreme Court to generally favor the maintenance of justice officials’ discretionary authority over the expansion of constitutional rights for criminal suspects, defendants, and convicted offenders.
Table 2.8 portrays the Supreme Court’s pattern of decision making from the 1995 term through the 2000 term. In the table, the labels liberal and conservative are used as a convenient shorthand to describe the outcomes supported by individual justices and the Court majority. Such labels are commonly used in empirical studies of the Supreme Court, and their use enhances scholars’ ability to make systematic comparisons of different Court terms and eras.
Despite the Rehnquist Court’s reputation for conservatism in criminal justice cases, 37% of its decisions supported individuals’ claims. Moreover, nearly half of these liberal decisions (28 of 61) were unanimous. In addition, the justices demonstrated a complete consensus on conservative outcomes in an additional 35 cases. Despite the strong differences of opinion among justices that are evident in many cases, the justices were in complete agreement in 38% of criminal justice cases (63 of 165). The data on unanimous liberal decisions indicate that the Rehnquist Court justices, including the conservatives, regularly encounter cases in which they share a consensus about the need to protect constitutional rights and to fulfill the legislative intent underlying federal statutes. The justices’ consensus in such cases leads to the imposition of limitations on criminal justices officials’ asserted authority. Previous studies highlight the risk that a Supreme Court’s ideological reputation will obscure the reality of its production of ideologically mixed outcomes during any given era (Smith & Hensley, 1993). As indicated by Table 2.8, the conservative Rehnquist Court’s regular support for liberal outcomes in criminal justice cases is consistent with these studies.
Table 2.8 Case Distribution by Vote and Liberal-Conservative Outcomes in U.S. Supreme Court Criminal Justice Decisions From the 1995 Term Through the 2000 Term
The dominance of the conservative majority is evident in the split decisions produced by the Court. Whenever there is disagreement among the justices, those who prefer conservative outcomes prevail in nearly 70% of nonunanimous cases. Attorneys who bring criminal defendants’ cases to the Supreme Court undoubtedly recognize that the justices support the government more frequently than they support individuals’ claims. However, the Court endorses individuals’ claims with sufficient regularity that attorneys ought to believe that it is worth “taking a shot” for many issues that have not been firmly and decisively defined in prior precedents.
In deciding criminal justice cases, individual justices differ from each other in their tendency to support individuals’ claims. Table 2.9 shows each justice’s support for liberal and conservative outcomes in criminal justice cases during six terms. For comparative purposes, the table also displays the percentages for justices serving on the Warren Court in 1968 (Smith, 1997a). Data for the Warren Court were drawn from the Supreme Court Judicial Data Base, whereas the Rehnquist Court data were classified and calculated by the author.
The percentages displayed in the table are generally consistent with conventional wisdom about the Rehnquist Court justices’ values and reputations, although some observers might have guessed that the ordering of the justices would be slightly different. The listing of percentages for the individual Rehnquist Court justices shows how much the Supreme Court has changed since the 1960s when they are compared with the percentages for Warren Court justices. As indicated by Table 2.9, six Warren Court justices (Black, Warren, Brennan, Marshall, Fortas, and Douglas) were as or more liberal than the most liberal Rehnquist Court justice (Stevens) with respect to their patterns of decisions for criminal justice cases. Conversely, five Rehnquist Court justices (Rehnquist, Thomas, Scalia, O’Connor, and Kennedy) are as or more conservative than the most conservative Warren Court justice (White).
Table 2.9 Individual Rehnquist Court Justices’ Liberal-Conservative Voting Percentages in U.S. Supreme Court Criminal Justice Decisions From the1995 Term Through the 2000 Term Compared With 1968 Warren Court Justices’ Lifetime Percentages for Criminal Justice Cases
a. Justice Breyer participated in only 24 of the 25 criminal justice cases during the 2000–2001 term. Thus, his total number of decisions is one fewer than that of his colleagues. He recused himself from participating in United States v. Oakland Cannabis Buyers’ Cooperative (2001), presumably because his brother is a federal judge who made a decision in the case in the lower courts.
Consistent with their reputations, Chief Justice Rehnquist and Justices Thomas and Scalia are the justices least likely to support individuals’ claims. Among the Court’s four most liberal justices, there is a notable 20% gap between the most conservative liberal (Breyer) and the most liberal conservative (Kennedy). This gap would seem to justify descriptions of the Court as split between two distinctive wings for criminal justice cases. It is also apparent that Justice Stevens is notably more consistent than are his colleagues in supporting liberal outcomes because there is a 10% gap between him and the next most liberal justice (Ginsburg), who is tightly bunched (i.e., within 5%) with the other two liberals (Breyer and Souter).
It is not surprising that the dividing line between the Court’s two wings defines the outcomes for most of the Court’s most closely contested cases. As indicated in Table 2.10, the losing liberal minority coalition in 5-to-4 conservative decisions was composed of the Court’s four most liberal justices in 23 of 28 decisions.
The most surprising aspect of the Rehnquist Court percentages in Table 2.9 may be the evidence that Justices O’Connor and Kennedy are nearly as conservative as Justice Scalia in criminal justice cases. Although O’Connor and Kennedy are regarded as two dependable members of the dominant five-member conservative majority, they are often described as the Court’s “centrists” who periodically abandon their conservative colleagues to enable the four most liberal justices to gain a five-member majority in specific cases (Greenhouse, 1992). Despite this reputation for relative moderation in criminal justice cases, they were no more likely than Justices Scalia and Thomas to join five-member majorities to create liberal outcomes in criminal justice cases during the time period examined. As demonstrated in Table 2.11, which depicts the majority coalitions in the Court’s thirteen 5-to-4 liberal decisions, the tandem of Scalia and Thomas abandoned their conservative colleagues to help the liberal justices form a razor-thin majority just as frequently (i.e., 4 times) as O’Connor and Kennedy acted individually to achieve the same results. In fact, Clarence Thomas, one of the Court’s most conservative justices, was actually the individual justice who helped the liberals form majorities in the largest number of closely divided decisions (5) because he acted on his own in one case in addition to the four cases in which he acted in concert with Scalia. These examples provide evidence that specific legal issues can draw justices away from their usual ideological allies because these issues strike a chord with the justices’ individualistic, or perhaps idiosyncratic, analysis or philosophy concerning specific principles of statutory and constitutional interpretation.
Table 2.10 Dissenting Coalitions and Frequency of Their Existence in the Rehnquist Court’s 5-to-4 Conservative Decisions From the 1995 Term Through the 2000 Term
Table 2.11 Majority Coalitions in the Supreme Court’s 5-to-4 Liberal Decisions From the 1995 Term Through the 2000 Term With the Conservative Coalition Members Highlighted
Table 2.12 shows an analysis of interagreement between individual justices on the Supreme Court. Such interagreement tables are used to detect the existence of voting blocs on the high court (e.g., Johnson & Smith, 1992). In empirical studies of the Supreme Court, voting blocs are determined according to the Sprague criterion. The Sprague criterion is calculated by subtracting the average agreement score for the entire Court from 100. The resulting number is divided by two and added to the Court average to establish the threshold level for defining a bloc. A bloc exists when the average of individual agreement scores for a set of justices exceeds the threshold established by the Sprague criterion calculation (Sprague, 1968). During the six terms examined in this study, there were two strong voting blocs in criminal justice cases, one conservative and one liberal. Chief Justice Rehnquist and Justices Scalia and Thomas formed the conservative bloc, in part because Scalia and Thomas agreed with each other at the highest rate of any pair of justices (92.1%). Justices Breyer, Ginsburg, and Souter formed a connected liberal threesome. If these blocs are characterized in light of the percentages evident for Warren Court justices in Table 2.9, one could say that the Rehnquist-Thomas-Scalia bloc is strongly conservative because it is composed of the three most conservative justices of the two eras examined. By contrast, the Breyer-Ginsburg-Souter voting bloc is only moderately liberal when compared with both Justice Stevens and the six Warren Court justices who supported individuals’ claims in criminal justice cases with much greater frequency.
Table 2.12 Interagreement Percentages for Paired Justices in U.S. Supreme Court Criminal Justice Decisions From the 1995 Term Through the 2000 Term
Explaining the Liberalism of the Rehnquist Court
Empirical data on the Supreme Court’s decision making during six terms confirm the validity of the Rehnquist Court majority’s conservative reputation for generally deciding in favor of the government in criminal justice cases. Five justices each favor the government’s position in two-thirds or more of all criminal justice cases. Simultaneously, however, the data show that simple generalizations about the Court’s conservatism may obscure recognition of the Rehnquist Court’s regular support for individuals’ claims, albeit in a minority of criminal justice cases. Moreover, because five justices are consistently conservative, a liberal outcome can only be produced when one or more of the conservative justices join liberal colleagues in support of individuals’ arguments about rights and legal protections. The conservative justices’ willingness to support individuals’ claims in selected cases is most evident in the 28 unanimous decisions favoring liberal outcomes, but it is also apparent in the other liberal decisions constituting nearly 40% of the Court’s total criminal justice cases.
Whenever the Rehnquist Court decides a criminal justice case in favor of the government’s position, few commentators are surprised because the dominance of the Court’s five consistent conservatives casts such results as virtually expected outcomes. The Rehnquist Court’s conservatism is both anticipated and explainable, largely because of the political history underlying the selection of justices by Republican presidents as well as the justices’ well-established track records of decision making in criminal justice cases. The members of the Rehnquist Court’s conservative majority have served on the high court for periods ranging from 11 years (Thomas) to 30 years (Rehnquist), and they have all been consistently conservative in criminal justice cases throughout their Supreme Court careers (Hensley, Smith, & Baugh, 1997). Although the nature, basis, and consequences of the Rehnquist Court’s conservative decisions deserve careful analysis, their regular production does not require special analysis to be predictable, explained, and understood. By contrast, the Rehnquist Court’s liberal decisions present a puzzling question. When and why does a Supreme Court dominated by a solid majority of consistent conservatives decide criminal justice cases in favor of suspects, defendants, and convicted offenders?
Although the foregoing question is intriguing on its face, the analysis of the question requires a major caveat. The Court’s decisions in favor of individuals’ claims do not necessarily establish new constitutional protections in the mold of the Warren Court’s innovative jurisprudence. The Rehnquist Court’s liberal outcomes often merely reaffirm an established precedent or provide a procedural protection for a convicted offender whose ultimate fate, a significant period of incarceration, will not change as a result of the Court’s decision. Despite the possibility that the Rehnquist Court’s liberal decisions may have a relatively modest impact on the lives of people drawn into the criminal justice system, the fact that a Supreme Court dominated by conservatives regularly makes such decisions is a matter worthy of examination.
Because the Supreme Court’s decisions are produced by shifting majority coalitions of varying sizes, no single causal factor can explain all of the Court’s liberal decisions. Obviously, unanimous liberal decisions are generated by different contexts and decision-making processes than those that lead to 5-to-4 decisions in which a single conservative justice abandons his or her usual allies to produce an outcome favoring individuals’ claims. Moreover, it is difficult for analysts to claim to have discovered definitive, verifiable explanations for the decision-making behavior of individual Supreme Court justices or the Court as a whole (Clayton, 1999). Scholars focus on a variety of factors that influence judicial decision making, including justices’ individual values and judicial philosophies as well as strategic behavior and institutional processes (Baum, 1997). The strength and importance of these factors may vary depending on the historical moment in which a particular legal issue arises. As a result, no single explanation can account for all of the Court’s liberal criminal justice decisions. Thus, distinct causal factors may be associated with particular categories of cases or specific legal issues.
Of the Court’s 61 liberal decisions during the terms analyzed in the foregoing data, 34 concerned nonconstitutional issues, primarily statutory interpretation. In these cases, it may be easier for justices to reach consensus if they have a shared understanding that their job is to ensure that statutes’ underlying legislative intent is fulfilled. For example, the Court’s unanimous decision in Pennsylvania Department of Corrections v. Yeskey (1998) declared that prisoners are entitled to file actions against state prisons under the Americans With Disabilities Act. In light of the fact that the Rehnquist Court has consistently declined to expand rights for convicted offenders (Fliter, 2001) and has actually diminished previously established rights (e.g., O’Lone v. Estate of Shabazz, 1987; Wilson v. Seiter, 1991), it would be very surprising if the Yeskey decision embodied a consensus about the need to give prisoners additional protections. Instead, the decision is best understood by recognizing that liberal and conservative justices will follow legislative intent without regard to their ideological preferences about the outcome (Scalia, 1997), albeit not necessarily in every single statutory interpretation case.
Another source of liberal outcomes can be individual conservative justices’ reactions to specific legal issues that cause them to abandon their usual allies. This can occur when the Court is presented with new issues about which the conservative majority lacks informative precedents or prior opportunities to examine and discuss the implications. For example, Justice Thomas’s decision to join his liberal colleagues and provide the decisive fifth vote for identifying a violation of the Eighth Amendment’s Excessive Fines Clause (United States v. Bajakajian, 1998) was apparently based on his individualistic reaction to this issue on first impression. Such outcomes can also be produced when cases raise new aspects of previously decided issues for which individual conservative justices have already indicated reluctance to join their usual allies. This appears to be the case in Justice O’Connor’s decision to join the liberals in striking down a Nebraska statute that sought to criminalize so-called partial birth abortions (Stenberg v. Carhart, 2000). Justice O’Connor’s vote in the case appears to be consistent with her position in previous decisions that upheld the constitutional right to make choices about abortion (e.g., Planned Parenthood v. Casey, 1992).
Liberal decisions can also be produced when conservative justices feel compelled to define limits on justice system officials’ authority when those officials take actions that test previously defined boundaries. Because of the Rehnquist Court’s reputation for conservatism and its consistent record of generally endorsing expanded governmental powers in criminal justice, police officers, prosecutors, corrections officials, and lower court judges may feel encouraged to push and test the limitations created by prior precedents. Their observations and experiences may indicate to them that the Rehnquist Court is likely to eliminate, diminish, or create exceptions to rights-enforcing rules established in prior Supreme Court decisions (e.g., Payne v. Tennessee, 1991; Wilson v. Seiter, 1991). In reality, as indicated by the Court’s recent record of favoring individuals in nearly 40% of criminal justice decisions, including 28 unanimous liberal decisions in recent terms, all of the justices believe individuals are entitled to some measure of constitutional and statutory protection in the criminal justice system. Because the dominant conservative majority may be perceived as supporting the diminution of rights, the Court can expect to find itself periodically called on to reinforce the message that there are, in fact, limits to officials’ authority. For example, in Florida v. J.L. (2000), a unanimous Court reiterated the requirement that police officers use reliable information to form the necessary reasonable suspicion for a “stop and frisk” under the doctrine of Terry v. Ohio (1968). Similarly, in Bond v. United States (2000), a seven-member majority, including consistent conservatives Rehnquist, Thomas, O’Connor, and Kennedy, declared that a border patrol officer violated reasonable expectations of privacy under the Fourth Amendment by randomly squeezing and manipulating soft-sided luggage on an interstate bus. In Knowles v. Iowa (1998), a unanimous Court declared that police officers cannot automatically search automobiles in conjunction with the issuance of a traffic citation, even if such searches are authorized by state statute. These decisions serve to protect rights by reaffirming the existence of limits on officials’ authority. As a result, they serve as barriers against encroachment through experimental exercises of police investigative powers.
Analysts have raised questions about why the conservative-dominated Rehnquist Court has not reversed the major iconic precedents of the Warren Court era (Alexander, 1990). For example, the Rehnquist Court has declined to overturn Mapp v. Ohio (1961) and Miranda v. Arizona (1966), despite opportunities to do so. It may be the case that decisions in the Burger and Rehnquist Court eras that weakened or created exceptions to such precedents have made the liberal principles’ impacts largely symbolic and thereby dissipated clashes between Warren Court doctrines and the values of Rehnquist Court conservatives (Smith, 1997b). The conservative justices may also recognize that police officers’ strategic adaptations to the Warren Court’s decisions have permitted law enforcement officials to secure confessions and undertake searches with sufficient freedom to fulfill crime control objectives, thus obviating any perceived need to eliminate famous precedents (Leo, 1996). The foregoing reasons may very well have motivated several conservative justices to join their liberal colleagues in reiterating the Court’s commitment to the constitutional requirement of Miranda warnings prior to custodial interrogations (Dickerson v. United States, 2000). They certainly provide an additional plausible basis for the production of liberal outcomes by a conservative-dominated Court.
An empirical examination of the Rehnquist Court’s criminal justice decisions during a 6-year period confirms the high court’s reputation for generally supporting the government’s position in opposition to constitutional rights claims by individual suspects, defendants, and convicted offenders. However, systematic analysis also reveals that the Court regularly supports individuals’ claims and that a large segment of the Court’s criminal justice docket is composed of nonconstitutional cases, especially statutory interpretation.
The voting patterns of individual justices indicate the existence of two distinct wings within the Rehnquist Court. One wing contains five justices who are as or more conservative than any justice on the 1968 Warren Court. By contrast, the Rehnquist Court’s most liberal justice (Stevens) supports liberal outcomes in criminal justice cases less frequently than did six justices on the 1968 Warren Court. These data provide evidence of the nature and extent of change in the Court’s composition since the 1960s era in which the justices were especially active in expanding constitutional rights and limiting the scope of justice system officials’ authority.
Within the Rehnquist Court, two 3-member groups of justices vote together with such significant frequency that they qualify for classification as consistent voting blocs. One bloc contains the three most conservative justices (Rehnquist, Thomas, and Scalia), and the other contains the moderately liberal justices (Breyer, Ginsburg, and Souter). The existence of a conservative voting bloc on a Court with two additional individual justices who favor the government’s position in two thirds or more of criminal justice cases helps to explain the source of the Court’s reputation and record for rejecting most claims from individuals.
Close examination of the Court’s 5-to-4 liberal decisions indicates that they are not consistently driven solely by occasional defections by the two conservative justices, Kennedy and O’Connor, who have reputations as moderate “swing” voters. In fact, the voting records of these justices in criminal justice cases are nearly as conservative as that of noted conservative spokesperson Justice Scalia. Moreover, the strongly conservative Justice Thomas more frequently defected from the conservative majority to produce liberal outcomes in close cases. Thus, individual justices’ reactions to specific issues seem to play an important role in determining coalition shifts that produce decisions supporting individuals’ claims. These individualistic reactions are not, however, the sole source of liberal outcomes because the Court produced more than two dozen liberal decisions that garnered complete support from all of the justices. As a result, examinations of the reasons for the production of liberal decisions by a conservative-dominated Court must also consider other potential causal factors, including consensual norms about statutory interpretation, the need to rein in criminal justice officials by reaffirming limits on authority, and the reiteration of symbolic principles.
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