Law Enforcement and Criminal Law Decisions

Abstract

One of the extraordinary aspects of the Supreme Court's 2000 Term was the success of criminal defendants. Criminal defendants prevailed last Term in two cases concerning sentencing,' two of three cases concerning the Fourth Amendment, and both cases concerning the Fifth Amendment privilege against self-incrimination. Although I do not have comparative statistics, I expect that this is the best Term criminal defendants have had in a long time, perhaps even since the end of the Warren Court. 

One Term, of course, does not make a trend. I certainly do not mean to suggest that the Rehnquist Court is getting soft on crime or criminal defendants. But the success of criminal defendants is interesting, especially because in some of the cases-notably Apprendi concerning sentencing and Hubbell concerning the Fifth Amendment's protection for documents-the two most conservative Justices, Scalia and Thomas, wanted to go even further than the Court in protecting rights. I have long thought that conservatives with their distrust of government and government power logically should be for greater protections for criminal defendants' rights. That certainly has not been the case over the past few decades. Nor was it true in all of the criminal procedure cases last Term; Scalia and Thomas were the dissenters in Dickerson's reaffirmation of Miranda v. Arizona. Yet, the Term's criminal procedure decisions offer the possibility that the Court's great deference to law enforcement may be waning.

Indeed, this is consistent with the central theme I saw in the amazing October Term 1999: This is a Court that defers to no one. The Court showed no deference to Congress and struck down important federal laws, such as the civil damages provision of the Violence Against Women Act. The Court did not defer to state courts and state laws, such as the New Jersey Supreme Court's holding that the Boy Scouts exclusion of a gay scout leader violated state law and was not protected by freedom of association. The Court did not defer to state legislative powers in repeatedly finding preemption by federal laws. The Court did not defer to federal agencies, as evidenced by th striking down of the Food and Drug Administration's regulation of tobacco products. The criminal procedure decisions likewise reflect a lack of deference to the government. Right now, it appears that this is a Court that defers to no one.

Eleven years ago, I had the wonderful opportunity of writing the forward to the Harvard Law Review. My central thesis was the Rehnquist Court's tremendous deference to government at all levels; the government prevailed in virtually every case that Term. The Court often expressed an explicit need for deference to majoritarian branches of government. No longer is this deference evident. Ironically, this is from a Court that by all accounts, is conservative; seven Justices were appointed by republican presidents and the most common division has five conservative Justices in the majority.

I will focus primarily on five cases: Apprendi v. New Jersey, which concerns sentencing; Illinois v. Wardlow, Florida v. J.L. and Bond v. United States, which involve the Fourth Amendment; and United States v. Dickerson, which reaffirmed Miranda v. Arizona.