What Is Criminal Law, Chopped Liver?

Thanks to Orin Kerr over at Volokh, I saw this piece for a recent issue of Time magazine in which numerous scholars were asked to name the best and worst Supreme Court decisions since 1960. As with most such lists it’s only interesting in prompting discussion, not as a real normative exercise. It’s also interesting for what is completely absent from the discussion.

The cases mentioned, either good or bad, all tend to be cases involving interpretation of the Constitution, rather than statutory or regulatory cases. That makes sense – statutory or regulatory decisions that get it “wrong” can be effectively overruled by Congress or the executive branch. Constitutional rulings, for good or ill, hang around longer.

Nor am I as surprised as Kerr that the folks sampled focused more on the long-term impact of a particular case than the legal reasoning of it. While lawyers and academics may get caught up in the details of legal reasoning, in the real world a case’s impact is the only thing that really matters. A well-reasoned case that reaches a wrong or otherwise bad conclusion still strikes me as a “bad” decision.

But putting all that to one side, while the cases cited by the panel cover a wide range of topics – free speech, racial and LGBT equality, federalism, etc. – there’s one area that’s overlooked completely. Much to my surprise, nobody thought a decision involving criminal law was among the Court’s best or worst in the last seven and a half decades.

A caveat – I realize that some cases that deal with other issues are criminal cases. I’m thinking of Texas v. Johnson, which involved flag burning. It only got to the Court because someone got prosecuted, but it’s really a First Amendment case, not a criminal law case. On garden variety bread and butter criminal cases, the surveyed experts are oddly silent.

Consider some of the landmark criminal law decisions issued by the Supreme Court since 1960:

  • Miranda v. Arizona (1966): Of “You have the right to remain silent . . .” fame.
  • Gideon v. Wainwright (1963): Of “if you cannot afford an attorney, one will be provided to you at no charge” fame.
  • Terry v. Ohio (1968): The birth of “reasonable suspicion” as a part of Fourth Amendment jurisprudence and, arguably, the beginning of the end of the Fourth Amendment.
  • Whren v. United States (1996): Enshrining the “objective” analysis for Fourth Amendment issues, effectively allowing cops to make stops on pretextural grounds.
  • Ohio v. Roberts (1980) & Crawford v. Washington (2004): Two for the price of one – in Roberts, the Court largely eviscerated the Sixth Amendment’s right to confrontation, so long as the evidence in question was otherwise “reliable,” while in Crawford the Court reversed, and held that confrontation itself is the Constitutional engine of reliability.
  • Apprendi v. New Jersey (2000): Holding that the Sixth Amendment required any fact that enhances a sentence to be alleged in an indictment and proven to a jury beyond a reasonable doubt. The basis, eventually (in United States v. Booker [2005]), for the declaration that the United States Sentencing Guidelines were, as enacted, unconstitutional.

And that overlooks every death penalty case for the past several decades. Given that all these cases involve interpretation of the Constitution and have had far reaching impacts (for good or ill – pick you side), it seems strange that not one of the 15 people interviewed for the Time piece picked one. The question is why?

Maybe it’s just a matter of limited room. In any “best/worst” list there’s going to be worthy items that just miss making the cut. Maybe some (or all) of those cases were considered and rejected. A lot of second choices, perhaps.

But I can’t help shake the idea that, just maybe, not a lot of people give a shit about criminal law, unless they’re directly involved in it. It’s easy to see yourself involved with a First Amendment issue or concerned about equality under the law. Less so when it comes to criminal procedure. Most people don’t care about things like confrontation of witnesses or appointed lawyers until they need it themselves. That’s partly why only now, after decades of unprecedented incarceration, does the public at large seem concerned about it.

Perhaps I undersell the academics in the Time piece. I hope so. One of the things that legal scholars and those of us in the legal community need to do a better job of doing is impressing upon people how issues that don’t necessarily impact them directly still need their attention when it comes to politics and policy. One way to do that would be to acknowledge how important the Supreme Court’s criminal docket is.

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