Professor of Criminal Justice, Michigan State University; Assistant Professor of Political Science, San Diego State University

Author:Christopher E. Smith; Madhavi Mccall
Position:Criminal Justice And The 2002-2003 United States Supreme Court Term

I. Introduction II. Empirical Measures Of The Supreme Court's Decision Making III. Case Decisions A. Unanimous Decisions B8-1 Decisions C. 7-2 Opinion D. 6-3 Decisions E. 5-4 Decisions IV. Conclusion


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Professor of Criminal Justice, Michigan State University. A.B., 1980, Harvard University; M.Sc., 1981, University of Bristol (England); J.D., 1984, University of Tennessee; Ph.D., 1988, University of Connecticut.

Assistant Professor of Political Science, San Diego State University. B.A., 1989, Case Western Reserve University; M.A., 1993, University of Akron; Ph.D., 1999, Washington University, St. Louis.

I Introduction

As an appellate court with discretionary jurisdiction, the U.S. Supreme Court can set its own agenda by selecting issues of interest and importance from the thousands of cases that arrive through petitions for a writ of certiorari.1 Noticeable changes in the Court's attentiveness to specific issues might provide evidence that certain justices are succeeding in their efforts to shape the Court's role or agenda.2 Changes may also develop from unpredictable patterns in the nature of issues addressed and decided by the state supreme courts and federal appellate courts whose decisions are challenged in the U.S. Supreme Court.3 During the U.S. Supreme Page 860 Court's 2002-03 Term, the number of criminal justice cases4 decided by the Court declined to equal the lowest totals in recent years. The Court decided only twenty-two criminal justice cases, a number equal to that of its totals in 1998-995 and 1995-96.6 These annual totals are below those in the immediately preceding terms, twenty-seven in 2001-027 and twenty- five in 2000-01.8 In other recent years, the Court examined a markedly greater number of criminal justice cases. In the 1999-00 Term, the Court issued thirty-one criminal justice decisions.9 The justices decided thirty and thirty-five criminal justice cases for 1996-9710 and 1997-9811respectively. Despite the shifts in the Court's attention to criminal justice, there is no indication that increased or reduced attention to criminal justice 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 issues. As indicated by the foregoing figures, the Court's selection of criminal justice cases has increased and decreased in specific years without manifesting any consistent trends.

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Analysts of the Rehnquist Court believe that "It's definitely a conservative court in the criminal law area"12 because it is dominated by 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.13 In so doing, a majority of contemporary justices have made decisions "extending broad deference to government in death penalty cases, recognizing exceptions to the Miranda doctrine and Fourth Amendment exclusionary rule, and further expanding opportunities for police to conduct searches without a valid warrant."14

The Supreme Court's orientation toward criminal justice is always a matter of public importance because "Supreme Court decisions . . . define constitutional rights and provide guidelines for the appropriate exercise of authority of criminal justice officials."15 Thus there is good reason to monitor the Court's decision-making trends in criminal justice. In the early years of the twenty-first century, there may be even greater reason to monitor the justices' decisions as the legal system faces an array of percolating issues related to governmental anti-terrorism efforts, such as the prosecution of suspected terrorists16 and the use of anti-terrorism laws for a variety of purposes in the criminal justice system.17

This Article will explore the Supreme Court's impact on criminal justice during the 2002-03 Term through an empirical examination of the Court's decision-making processes and a review of the cases. In the final analysis, the Supreme Court's 2002-03 decisions affecting criminal justice were consistent with previously established patterns in the Rehnquist Court's decision making: most cases favored the interests of the Page 862 government but a few decisions strengthened protections for individuals drawn into the criminal justice system.

II Empirical Measures Of The Supreme Court's Decision Making

In the tables and discussion that follow, the labels "liberal" and "conservative" are used as a convenient shorthand to describe the outcomes supported by individual justices and the Court majority. These labels can be problematic as consistently applicable classifying categories.18 However, the use of such categories is consistent with prior empirical studies of the Supreme Court and enhances scholars' ability to make systematic comparisons of different Court terms and eras. The definitions for these labels are drawn from the classifications in the Supreme Court Judicial Data Base in which "[l]iberal 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."19 By contrast, "conservative" decisions in criminal justice cases favor the government's Page 863 interests in prosecuting and punishing offenders over recognition or expansion of rights for individuals.

Table 1 summarizes the outcomes of the Supreme Court's 2002-03 decisions according to the Court's vote totals and the direction of the Court's decisions. The decisions predominantly favored the government although a notable percentage of decisions favored individuals (36%). The table shows a mix of consensus and division in the Court's criminal justice decisions. Nearly half of the Court's decisions (10) had not more than two dissenters, yet the other half of the decisions (12) showed significant disagreement among the justices as there were at least three dissenters. Because analyses of the Rehnquist Court frequently note the ideological divisions between the conservative justices (Rehnquist, Scalia, Thomas, O'Connor, Kennedy) and the moderately liberal justices (Stevens, Ginsburg, Souter, Breyer),20 a casual observer of the Court might be surprised at the degree of consensus. However, as indicated by the data, stark divisions emerge in only a portion of cases. Unlike in the late Warren Court era of the 1960s when a majority of justices supported individuals' claims in most criminal justice cases,21 the contemporary Court lacks a strident liberal justice who might disrupt the consensus on unanimous or near-unanimous conservative decisions.22

Table 1: Case Distribution By Vote And Liberal/Conservative Outcome In U.S. Supreme Court Criminal Justice Decisions, 2002-03 Term

Vote Liberal Conservative Total
9-0 2 5 7
8-1 1 1 2
7-2 1 0 1
6-3 2 4 6
5-4 2 4 6
TOTAL 8 (36%) 14 (64%) 22

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One of the most striking aspects of the cases that deeply divided the Court was the representation of liberal outcomes. Four out of the twelve 5- 4 and 6-3 decisions produced liberal outcomes, which means that one or more of the Court's conservative members, typically O'Connor or Kennedy,23 abandoned their usual colleagues to join the moderate liberals. This result may appear surprising if one focused only on 5-4 decisions in a specific term, such as the 2000-01 Term, in which conservatives controlled the outcomes in six of the seven deeply-divided decisions.24 In reality, however, if one examines the 5-4 and 6-3 decisions in the prior terms, liberal outcomes are consistently evident in split decisions, ranging from a lows of three out of eleven in 1996-199725 and four out of fourteen in 1999-200026 to highs of seven out of fifteen in 2001-200227 and four out of nine in 1998-1999.28

Like the preceding year in which sixty-three percent of the Court's criminal justice decisions concerned constitutional issues,29 most of the Court's cases (59%) concerned constitutional issues, as was also true during the Court's 1998-99 Term30 and 1999-00 Terms.31 By contrast, in the 2000-01 Term only forty-four percent of the criminal justice cases involved constitutional issues.32 Non-constitutional issues also comprised the majority of criminal justice decisions in the 1995-96, 1996-97, and Page 865 1997-98 Terms.33 The inconsistent pattern of constitutional and non- constitutional issues decided by the Court each term reinforces the perception that, as with the number of criminal justice cases selected for decision, the selection of specific issues is determined by the ebb and flow of issues presented to the justices rather than any planned or strategic agenda.34

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Table 2: Issues In Criminal Justice Cases In The Supreme Court's 2002-03 Term

Constitutional Issues: 13 (59%) Other Issues: 9 (41%)
Right to Counsel: Wiggins v. Smith35 Habeas Corpus: Miller-El v. Cockrell36; Price v. Vincent37; Clay v. United States38; Massaro v. United States39; Woodford v. Garceau40
Double Jeopardy: Sattazahn v. Pennsylvania41 Federal Criminal Statute: United States v. Jimenez Recio42
Due Process: Connecticut Administrative Procedures: United
Department of Public Safety v. Doe43 States v. Bean44
Eighth Amendment: Ewing v. California45; Lockyer v. Andrade46; Overton v. Bazetta47 Non-Article III Judicial Officers: Roell v. Withrow48; Nguyen v. United States49
Ex Post Facto Clause: Stogner v. California50; Smith v. Doe51
Fair Trial: Sell v. United States52
Privacy: Lawrence v. Texas53
First Amendment: Virginia v. Hicks54; Virginia v. Black55
Self Incrimination: Chavez v. Martin56
Page 867 In theory, the Court's attention is drawn to controversial, unsettled, or emerging areas of law when it grants writs of certiorari to accept cases for hearing.57 Thus, it is not surprising that the Court addressed continuing controversies, such as the criminalization of homosexual sex acts,58 "three- strikes" sentencing laws,59 and sex offender registration laws.60 These issues garnered significant...

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