Supreme Court appointments are like "Law %amp% Order" episodes: The
cast of characters changes, but the dialogue always sounds the same.
Whoever the nominees are, the script for the inevitable
confirmation battles has already been written. Abortion, church and
state, more abortion, gay rights, and still more abortion--interest
groups and senators are setting the table, and that's the menu.
It's strangely disconnected from what the Supreme Court actually
does and from the places where the justices really exercise power.
If Roe v. Wade goes by the boards, abortion law will stay roughly
the same. Nor will American life change much if the Ten
Commandments start dropping off courthouse walls.By contrast, another aspect of the Court's work affects lots of
lives. The United States incarcerates more than two million people
in its prisons and jails today, roughly seven times the number held
in 1970 and five times the 1980 figure. For the past 40 years, the
Supreme Court has helped shape the process that puts those men and
women behind bars. When can police officers frisk suspects on the
street or search their cars? When do police have to give Miranda
warnings? How hard can they push suspects to confess--and how hard
can prosecutors push defendants to plead guilty? How must juries be
selected? Which sentencing procedures are permissible, and which
ones aren't? Supreme Court justices answer all these questions and
dozens more like them.
The answers matter enormously. Which means that the Supreme Court's
most important job is not managing the culture wars. Regulating the
never-ending war on crime is a much bigger task. Alas, it may also
be the job the Court does worst.
Civilizations define themselves by when, how, and whom they punish.
Those choices are especially important in a society like ours, with
a long history of both criminal violence and official racism.
Forty-five percent of American prisoners are black. The
imprisonment rate--the number of prison inmates per 100,000
people--stood at 482 in 2003. Among black males, the figure was
3,405. For black men in their late twenties, the number exceeds
9,000. Court decisions that help shape those numbers are vastly
more important than the latest church- state fight.
And the justices do shape those numbers, both by what they regulate
and by what they leave alone. Fourth Amendment case law makes it
easy to justify police stops and frisks in the inner-city
neighborhoods where many of those young black men live. In one
recent case, a Chicago man saw a police van and ran. According to
the justices, that was reason enough to seize him. The result in
Illinois v. Wardlow sounds obvious to middle-class suburbanites.
But, to people in neighborhoods like Wardlow's, running from the
cops may be more a survival skill than a sign of guilt.
Another recent case, Kyllo v. United States, involved a defendant
who was growing marijuana inside his house on Rhododendron Drive
(no kidding) in Florence, Oregon. Using a thermal imager, officers
discovered that one wing of the house was a lot warmer than the
rest. Inside, they found more than 100 marijuana plants. The
Supreme Court held that the thermal imager violated the defendant's
rights. Decisions like Wardlow and Kyllo make it a good deal easier
for the police to make drug busts on poor city streets than in the
suburbs.
That's not all. Criminal trials have grown so cumbersome (and
budgets so strained) that hardly anyone uses them. Nineteen out of
every 20 felony convictions stem from guilty pleas. What does the
Supreme Court have to do with that? Plenty. The Court has imposed
elaborate rules governing nearly every aspect of criminal trials,
from jury selection to sentencing. That makes trials more
expensive. Worse, the justices keep refining procedural
rules--making them so nuanced that no one can understand them. The
examples are endless. The prosecutors in Miller-El v. Dretke struck
almost all the blacks from the defendant's jury. You're not
supposed to do that. A straightforward case, right? Not when
Justice David Souter was through with it. His majority opinion went
on for 33 pages of mind-numbing detail, muddying the waters. And,
because lawyers can't tell what the law requires, they waste more
time and energy arguing about it, which makes trials more costly
still.
It gets worse. Last January, in United States v. Booker, the
justices handed down a decision that rewrote key federal sentencing
statutes. Booker provided dueling majority opinions by two opposing
blocs of justices. Ruth Bader Ginsburg, the only justice to sign
both, didn't explain her views. Lawyers and judges were left
scratching their heads.
Procedures should be clear and simple. For criminal trials, they are
anything but. That breeds uncertainty. It also breeds litigation
that focuses on the process, rather than on the question that
criminal trials are supposed to answer: whether the defendant
committed the crime.
Poor defendants can't afford all that procedural litigation--hence
the high guilty plea rate. Cash-strapped district attorneys know
that and charge accordingly. So the universe of criminal defendants
grows steadily poorer. In a society where race and class often
coincide, these class biases tend to produce racial biases. This
may explain why blacks, who were one-third of the total prison
population in 1960, now make up nearly half.
These sound like liberal complaints. But conservatives have a lot to
complain about, too, as they would know if they paid attention to
anything other than the culture wars. Miranda doctrine bars the
police from even the most genteel questioning of suspects who say
the magic words--"I want to see a lawyer"--after they hear the
famous warnings. That is a valuable gift to sophisticated criminals
who know enough to keep their mouths shut. Not coincidentally, it
is also a large gift to terrorists--which is why the government
does not want to abide by U.S. law when questioning suspected Al
Qaeda members.
Why does the Court do such a bad job in this area? The answer may be
simple ignorance. The criminal justice system is a massively
complex enterprise. Figuring out the effects of the latest abortion
ruling is child's play compared with unpacking the consequences of
decisions like Wardlow and Kyllo on policing or the effects of
cases like Miller-El and Booker on criminal trials and plea
bargains. Getting those consequences right would be hard even for
experts. And the highest court in the land is not filled with
experts. Souter is the only sitting justice with substantial
experience in criminal litigation--and that was on the
not-exactly-mean streets of New Hampshire. Frontline urban
prosecutors and defense attorneys rarely end up on federal appeals
courts, the breeding ground for future justices. So they never make
it to presidential short lists.
Justices who have never seen the inside of a police station are
happy to expound on the virtues and vices of different kinds of
drug enforcement. If they knew more, they might say less. Veterans
of the criminal justice trenches understand that, when it happens,
productive change comes from the men and women who serve in those
trenches. Community policing and crime labs, drug courts and
faith-based prison initiatives, "broken windows" policing and
partnerships with inner-city churches--all the best ideas in
contemporary criminal law enforcement bubbled up from below. None
stemmed from judicial edicts.
Judging from the names bandied about in the press, the next couple
of Supreme Court picks will be like the ones who have gone before.
That's a shame, but it need not be a tragedy. The justices--both
old and new--need to remind themselves of a few simple truths. The
Constitution guarantees a fair criminal process. That should mean a
modest number of basic guarantees, defined as clearly as possible.
Beyond the basics, legislators, prosecutors, and police officers
should be free to experiment. The criminal justice system
desperately needs innovation. Constitutionalizing everything five
justices can agree on stifles innovation. If President Bush wants
good results in this piece of the legal landscape, he should
appoint justices who will let the real reformers do their jobs.
By William J. Stuntz
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