by Christopher E. Smith, Christina DeJong, and Michael A. McCall. Lanham, Md.: Lexington Books, 2013. 334pp. Paper: $43.99. ISBN: 978-0-7391-4081-9.
Reviewed by Frank J. Colucci, Associate Professor of Political Science, Purdue University Calumet. Email: coluccif [at] purduecal.edu.
Although criminal law makes up much of the U.S. Supreme Court’s calendar, many political scientists – me included – grant it too little attention. The essays collected in this volume, most written by scholars in criminal justice, explore the contributions of the individual Justices who served with Chief Justice William H. Rehnquist to development of constitutional doctrine in that area.
Criminal law clearly moved in a decisively conservative direction under Rehnquist, Christopher E. Smith and Michael A. McCall write in the introduction, but the Court “never coalesced into a unified group with a shared vision and concerted action aimed at undoing the legacy of the Warren Court era" (p.3). “The anticipated counterrevolution did not fully take place,” they argue, and “the complexity of the mixed results of the Rehnquist Court's decisions is attributable to the distinctiveness of each justice” (p.viii). The body of the book consists of 12 chapters, each analyzing an individual justice who served on the Court between 1986 and 2005. (Lewis F. Powell, who retired in 1987, is excluded; William J. Brennan and Thurgood Marshall, who retired in 1990 and 1991, respectively, are considered in a combined chapter.)]
The core chapter documents how Rehnquist “directed an evolutionary process in which he changed conversations in the judiciary” (p.115). He changed from an associate justice in the 1970s who wrote many solo dissents into a Chief Justice who rarely dissented and only once dissented alone. As McCall writes, Rehnquist “seemed to temper his more maverick qualities” not merely because of his role as Chief, but also because the Court included more justices – often a majority – who would vote with him. With these appointments, “much of Rehnquist’s conservative jurisprudence that he began to stake out early in his career eventually gained majority support and the weight of constitutional law” (p.116).
The Court accomplished this shift not through overruling Warren Court precedents directly, but “by shifting thresholds and reconstructing definitions” in existing cases and by “limiting the scope” of protections under the Fourth, Fifth, and Eighth Amendments (pp.115, 101). Rehnquist may have “failed to marshal sufficient support to overturn” Warren Court precedents like MAPP V. OHIO, GIDEON V. WAINWRIGHT AND MIRANDA V. ARIZONA and “failed to garner majority support for his positions in potentially landmark cases late in life” (p.111). Despite his “strong disregard” for the case, Rehnquist wrote the majority opinion in DICKERSON V. U.S (2000) “grudgingly” upholding it (p.112). Rehnquist led criminal law in a [*580] markedly more conservative direction, McCall writes, yet the Court during his tenure never spoke “with a single, conservative voice” (p.94).
One reason for this unity was the direct challenge to Warren Court precedent presented by originalists Antonin Scalia and Clarence Thomas. “Justice Scalia’s interpretive approach and outspokenness,” Smith and McCall argue, “often placed him in opposition to the views of his Rehnquist Court colleagues who … did not follow an originalist theory” (p.170). Scalia’s textualism led him to liberal results in cases involving the confrontation clause, jury sentencing and some search and seizure cases (pp.175-76). Nevertheless, Scalia like Thomas supported the government in criminal cases more than 75 percent of the time (p.169). Scalia “has no particular reverence for precedent,” Smith and McCall write (p.182): his concurring and dissenting opinions “provide ammunition for future justices who may revisit these matters” (p.183). Joyce A. Baugh contrasts Thomas’s positions and opinions with those of the Justice he replaced, Thurgood Marshall. In “marked contrast to his predecessor” (p.244), she writes, Thomas’s opinions “reflect an emphasis in promoting efficiency in the criminal justice system, and deferring to state officials’ decision making” over the rights of individuals (p.233). Baugh concludes that Thomas’s influence on the criminal justice doctrine “appears rather limited” because like Scalia “he has gone beyond what is necessary to decide the case at hand, exhorting the Court to overturn longstanding precedents” (p.253).
A second reason for this disunity resulted from the incrementalism of Sandra Day O’Connor and Anthony Kennedy. Madhavi M. McCall focuses on O’Connor’s “deference to state actors” in cases like GONZALES V. RAICH (2005), her tendency “to decide cases on narrow grounds rather than handing down sweeping decisions,” and her use of “concurring and dissenting opinions to fully explore the complex legal issues involved in cases” (pp.146-147). McCall emphasizes O’Connor’s moderate record on women’s rights issues, her conservative votes on Fourth Amendment searches and seizures, and how she recognized the conflict in both U.S. v. MORRISON and ATWATER V. CITY OF LAGO VISTA (2001). O’Connor also “appeared to have come full circle during her career on the bench,” McCall writes, “casting vital conservative death penalty votes early ... and pivotal, liberal death penalty votes in the last decade of her tenure” with the exception of her dissenting vote in ROPER V. SIMMONS (2005). While O’Connor “leaves behind an impressive judicial legacy,” McCall concludes, “the Court shifted decidedly to the right when Samuel Alito replaced her on the bench” (pp.165, 145).
While Kennedy may have often proven a crucial vote for conservative outcomes, John D. Burrow writes, due to the “infrequency” of his criminal justice opinions his “judicial philosophy remained more elusive” (p.190). Kennedy wrote more often when criminal law intersected with free speech (see TEXAS V. JOHNSON), federalism (see U.S. V. LOPEZ) color-blindness (see POWERS V. OHIO), personal liberty more generally (see LAWRENCE V. TEXAS), and to the nature of human personality (see RIGGINS V. NEVADA as well as ROPER V. SIMMONS). Although Kennedy’s [*581] opinions “affected very few criminal defendants,” Burrow writes, they “have symbolic implications for the changing views and policy direction of the country” (p.206).
Rehnquist’s elevation from Associate Justice to Chief Justice – in the middle of a decade of five Republican appointments, each more conservative than the justice they replaced – caused decline in the power of more senior and more liberal justices. “The influence of Brennan and Marshall slowed the Court’s shift to conservatism,” claim Lee Ruffin Wilson and Ashlyn Kuersten (p.27), but the addition of new justices could not prevent it. Marshall and Brennan “contributed to the debate” about the death penalty, for instance, “by forcing later justices to determine just where their line in the sand should be” (p.38). Blackmun, they write, “distinguished himself as a justice prone to making extremely personalized, even sentimental remarks to an extent not usually seen in the opinions of other Supreme Court justices” (p.81). He perhaps made remarks in cases like DESHANEY V. WINNEBAGO COUNTY and CALLINS V. COLLINS not merely because of a personal evolution but also from frustration of continually being outvoted. Christina DeJong emphasizes Ruth Bader Ginsburg’s “proactive assertiveness in writing concurring and dissenting opinions” that “emphasized the need for greater protection of rights in instances in which the Rehnquist Court had decided to limit or diminish constitutional rights” (p.272).
The conservative shift of the Rehnquist Court circumscribed the role of other justices. Byron White, writes Mark S. Hurwitz, “was somewhat more conservative in criminal justice issues” and served for a time as the median justice on the Court (pp.49, 58). John Paul Stevens, to Smith, became not merely a prolific writer of concurring and dissenting opinion; he used his senior position—on the rare occasions where Rehnquist was not in the majority--to assign to himself majority opinions and “used this opportunity in a number of cases to craft important opinions affecting criminal justice” (p.131). Even David H. Souter – who, as Scott P. Johnson writes, “clearly evolved into a more moderate, or even liberal jurist” (p.212) – did generally side with the government in search and seizure cases like ATWATER. In contrast, Souter voted to provide “greater protection for the rights of criminals during the later stages of the criminal justice process” such as sentencing and prisoners’ rights (p.228).
Charles F. Jacobs’s chapter assessing Justice Stephen G. Breyer’s merits particular praise. Breyer’s votes to allow judicial discretion under sentencing guidelines in APPRENDI V. NEW JERSEY, BLAKELY V. WASHINGTON, and U.S. v. BOOKER and to invalidate California’s “three strikes” law in EWING V. CALIFORNIA “may not reflect the intent of legislatures.” These votes conflict with the approach the Justice articulated in ACTIVE LIBERTY (Breyer 2005), Jacobs writes, as they “do not necessarily promote the enhancement of democracy in all circumstances” (p.281). He finds a fundamental tension between Breyer’s commitment to active liberty and the modern, primarily negative constitutional guarantees in the Bill of Rights. “The pursuit of democratic objectives in the area of criminal justice,” concludes Jacobs, “seems an [*582] impossible goal” (p.291).
This volume does lack a final chapter outlining what – other than ideology – was so distinctive about the Rehnquist Court’s criminal justice decisions (contrast Clayton and Pickerill 2006). As the Rehnquist Court has become the Roberts Court, have the trends identified in this book persisted with four new Justices and a new Chief? What promises to be lasting, and what factors and practices – though decisive during the Rehnquist Court – have proven a product of individual personalities since departed? If the Rehnquist Court retained “symbolic” Warren Court precedents (p.14), did it in substance produce the counter-revolution that the Burger Court appeared to promise but failed to deliver? A clear, concluding assessment of Rehnquist Court’s criminal justice legacy would strengthen this collection.
THE REHNQUIST COURT AND CRIMINAL JUSTICE effectively complements existing works that examine these Justices as individuals (see Bradley 2006, Davis 1989, Gerber 1999, Knowles 2009, Maveety 2008 and 1996, Rossum 2006, Yarbrough 2007 and 2005) and that explore the divisions among them (see Maltz 2003, Keck 2004, Schwartz 2005, Tushnet 2005, Yarbrough 2005). This book deserves a place in the literatures of public law, judicial politics, and constitutional history.
Bradley, Craig (ed.). 2006. THE REHNQUIST LEGACY. New York: Cambridge University Press.
Breyer, Stephen G. 2005. ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION. New York: Knopf.
Clayton, Cornell W. and J. Mitchell Pickerill. 2006. “The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence” 95 GEORGETOWN LAW REVIEW 1385.
Colucci, Frank J. 2009. JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY. Lawrence: University Press of Kansas.
Davis, Sue. 1989. JUSTICE REHNQUIST AND THE CONSTITUTION. Princeton: Princeton University Press.
Gerber, Scott D. 1999. FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS. New York: New York University Press.
Keck, Thomas M. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University of Chicago Press.
Knowles, Helen J. 2009. THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON FREEDOM. Lanham, Md.: Rowman & Littlefield.
Maltz, Earl (ed.). 2003. REHNQUIST JUSTICE: UNDERSTANDING THE COURT DYNAMIC. Lawrence: University Press of Kansas.
Maveety, Nancy. 2008. QUEEN’S COURT: JUDICIAL POWER IN THE REHNQUIST ERA. Lawrence: University Press of Kansas. [*583]
Maveety, Nancy. 1996. JUSTICE SANDRA DAY O’CONNOR: STRATEGIST ON THE SUPREME COURT. Lanham, Md.: Rowman & Littlefield.
Rossum, Ralph. 2006. ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION. Lawrence: University Press of Kansas.
Schwartz, Herman (ed.). 2002. THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT. New York: Hill & Wang.
Tushnet, Mark. 2005. A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW. New York: Norton.
Yarbrough, Tinsley E. 2007. HARRY A. BLACKMUN: THE OUTSIDER JUSTICE. New York: Oxford University Press.
Yarbrough, Tinsley E. 2005. DAVID HACKETT SOUTER: TRADITIONAL REPUBLICAN ON THE REHNQUIST COURT. New York: Oxford University Press.
Yarbrough, Tinsley E. 2000. THE REHNQUIST COURT AND THE CONSTITUTION New York: Oxford University Press.
APPRENDI V. NEW JERSEY 530 U.S. 466 (2000)
ATWATER V. CITY OF LAGO VISTA 532 U.S. 318 (2001)
BLAKELY V. WASHINGTON 542 U.S. 296 (2004)
CALLINS V. COLLINS 510 U.S. 1141 (1994)
DESHANEY V. WINNEBAGO COUNTY 489 U.S. 189 (1989)
DICKERSON V. U.S. 530 U.S. 428 (2000)
EWING V. CALIFORNIA 538 U.S. 11 (2003)
GONZALES V. RAICH 545 U.S. 1 (2005)
LAWRENCE V. TEXAS 539 U.S. 558 (2003)
MAPP V. OHIO 367 U.S. 643 (1961)
MIRANDA V. ARIZONA 384 U.S. 436 (1966)
POWERS V. OHIO 499 U.S. 400 (1991)
RIGGINS V. NEVADA 504 U.S. 127 (1992)
ROPER V. SIMMONS 534 U.S. 551 (2005)
U.S. V. BOOKER 543 U.S. 220 (2005)
U.S. V. LOPEZ 514 U.S. 549 (1995)
U.S. V. MORRISON 529 U.S. 598 (2000)
Copyright 2013 by the Author, Frank J. Colucci.