The Rehnquist Court and Criminal Justice

AuthorChristopher E. Smith
Published date01 May 2003
Date01 May 2003
Subject MatterArticle
10.1177/1043986203251607ARTICLEJournal of Contemporary Criminal Justice / May 2003Smith / REHNQUIST COURT AND CRIMINAL JUSTICE
The Rehnquist Court and Criminal Justice
An Empirical Assessment
Michigan State University
An empirical analysis of decisions by the Rehnquist Court can illuminate the trends that shape
the contemporary Supreme Court’simpact on criminal justice. By recognizing the small number
and mixed content of criminal justice cases decided by the Court each year, the importance of
other appellate courts becomes apparent. The Court’sdecisions and the voting patterns of its jus-
tices confirm the Rehnquist Court’s generally conservativereputation with respect to criminal
justiceissues. However, the Court produces more decisions, including unanimous opinions, sup-
porting individuals’claims than is generally recognized. In addition, the liberal 5-to-4 decisions
of the Court are not primarily attributable to decisive votesof the so-called swing justices, Jus-
tices O’Connor and Kennedy; conservativeJustices Scalia and Thomas also contribute to those
liberal outcomes.
Keywords: Supreme Court, constitutional law, Rehnquist Court, criminal procedure
When scholars articulate conclusions about institutions, processes, and
social phenomena, they inevitablysummarize and generalize. Gener-
alizations, 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 con-
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 jus-
Journal of Contemporary Criminal Justice, Vol. 19 No. 2, May 2003 161-181
DOI: 10.1177/1043986203251607
© 2003 Sage Publications
tice. 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 sum-
marized as being conservative and advancing a diminution of constitutional
rights for criminal suspects, defendants, and convicted offenders. For exam-
ple, in the words of John C. Domino in his book Civil Rights and Liberties:
Toward the 21st Century (1994),
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 inter-
nal 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 judi-
cial decision making do not adequately describe and provide a basis for ana-
lyzing all important aspects of the Supreme Court’s performance and conse-
quences, 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 perceivedtrends 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 underly-
ing characteristics and developments.
For severaldecades, scholars in political science have analyzed court deci-
sions 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 developedthat provide scholars
162 Journal of Contemporary Criminal Justice / May 2003

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