In THE REHNQUIST COURT AND CRIMINAL PUNISHMENT (1997), Christopher E. Smith observes that the
constitutional law of criminal punishment provides a fundamental test of the Supreme Court's commitment to protecting the
rights of powerless minority groups and argues that the conservative justices of the current Court have dramatically failed this
test. For the non-specialist, this book provides a useful summary of recent doctrinal developments in three areas of criminal
punishment law: sentencing and conditions of confinement; capital punishment; and "access to justice on the road to punishment"
(i.e., the right to counsel and habeas corpus). Generally clear and concise, and coming in at only 159 pages, the book is a
promising candidate for adoption in an advanced undergraduate course on criminal justice or civil liberties.
After a brief summary of developments in the law of criminal punishment during the Warren and Burger eras, and a series of
brief biographical sketches of the members of the Rehnquist Court, Smith devotes a chapter to each of the three areas of law
on which he focuses. In Chapter Two, he examines the Eighth Amendment limits on criminal sentencing and conditions of
confinement and concludes that the current conservative majority has successfully narrowed the scope of these constitutional
protections but has not gone as far as many conservatives have wished (39-70). For example, "the majority has resisted calls
from Justices Scalia and Thomas to take the drastic step of abandoning proportionality as a legitimate consideration" in
determining whether a particular criminal sentence is unconstitutionally cruel and unusual (40). Scalia and Thomas have been
somewhat more successful in the area of prison conditions, but have again failed to convince the Court to adopt their extreme
view "that general conditions in a prison can never violate the Eighth Amendment" (59). Thus, Smith concludes,
the conservatism of the Rehnquist Court's decisions in non-capital Eighth Amendment cases has been less aggressively
reactionary than in other areas of constitutional jurisprudence. . . . Consistent with empirical studies showing the
Rehnquist Court has been less thoroughly conservative than many observers believe, these Eighth Amendment issues
reveal a Court majority that has resisted extremists' efforts to withdraw constitutional protections from convicted
offenders (41).
In Chapter Three, Smith notes that the Rehnquist Court has allowed for a dramatic expansion of the use of capital punishment,
but he again concludes that the Court has not gone as far as Scalia and Thomas have urged (99). Smith observes that the
conservative justices' deference to state lawmakers and judicial authorities has allowed states to administer the death penalty in
a racially discriminatory manner and to apply it against both mentally retarded individuals and teenagers as young as sixteen
(75-89). Again, however, he concludes that while Scalia and Thomas have opposed virtually any judicial interference with state
imposition of the death penalty, their colleagues have sought to retain some minimal constitutional limits (92).
In Chapter Four, Smith examines the Rehnquist Court's efforts to limit criminal defendants' access to justice by narrowing the
scope of the Sixth Amendment right to counsel and by imposing a wide range of procedural restrictions on the use of habeas
corpus petitions seeking federal judicial review of state criminal convictions. Smith argues that "[i]t is with respect to these
judicial process issues that the Rehnquist Court may have had its most profound impact" (101). The Court's recent decisions
have made it virtually impossible to sustain a claim of ineffective assistance of counsel, thus "further reduc[ing] the likelihood that
the imposition of criminal punishment will be produced by careful and fair decisions" (104). In the habeas corpus context, Chief
Justice Rehnquist and his conservative colleagues have relied on both judicial workload concerns and a federalism-based
respect for state judicial proceedings in arguing that the use of the "Great Writ" should be severely restricted. The result of these
developments, Smith argues, has been to further exacerbate the problems raised in the other areas of criminal punishment law;
not only will many criminal defendants be unjustly sentenced to lengthy prison terms or to death, but they will have extreme
difficulty in persuading the federal courts even to consider their constitutional claims. Even in this area, however, Smith
acknowledges that "the justices have protected access to habeas corpus in some contexts" and have refused to overturn the
Warren Court decisions guaranteeing the right to counsel (125).
In each of these contexts, then, Smith argues that the Rehnquist Court has moved the law in a conservative direction, but has
not achieved the wholesale repudiation of individual and minority rights that many constitutional conservatives have advocated.
He ultimately fails, however, to offer an adequate explanation for this contradictory pattern of conservative successes and
failures. Smith's argument is rooted in Jeffrey Segal and Harold Spaeth's attitudinal model of judicial decision-making; he
repeatedly attributes judicial decisions to the individual justices' own "preferred policy outcomes," and he traces virtually all
changes in constitutional doctrine to the presidential appointment of justices with different preferences than their predecessors
(see, e.g., 6, 19, 29-30, 34, 59, 82, 88-9, 99, 125). As most readers of this review are aware, this model posits that the
justices simply manipulate legal arguments instrumentally in order to advance their preferred policy outcomes. Given these
theoretical assumptions, Smith is unable to explain why conservative justices such as O'Connor and Kennedy have sought to
preserve certain elements of the "liberal" constitutional rights which Republican presidential candidates from Nixon to Dole have
repeatedly decried. In the Eighth Amendment context, for example, Smith observes that while
the positions advocated by extreme conservatives found expression in the opinions of Scalia and Thomas, the other
justices, including such consistent conservatives as Rehnquist and O'Connor, demonstrated that there is a relatively
broad consensus among conservative and liberal justices in support of acknowledging Eighth Amendment protections
covering criminal punishment and prison conditions (68).
Besides observing that the Burger Court's landmark Eighth Amendment decisions were never as roundly condemned by
conservative critics as were Warren Court criminal procedure decisions such as MAPP v. OHIO (1961) and MIRANDA v.
ARIZONA (1966), Smith's only explanation for these developments is that "the idea that the Eighth Amendment contains
standards for prison conditions that must be implemented through judicial supervision seems to have become accepted as part
of a general value consensus shared by most conservative justices" (40). I would argue that this "value consensus" represents a
judicial respect for legal norms which impose an outer limit on constitutionally-tolerable criminal punishments. While such legal
norms are inherently indeterminate and contestable (and in this case, are in fact contested by Scalia and Thomas), they
nonetheless influence judicial behavior in ways which the attitudinal model fails to capture.
This point is worth belaboring because our understanding of constitutional development during the Rehnquist era is dependent
upon it. We simply cannot explain the Rehnquist Court's partial preservation of "liberal" constitutional rights in the criminal
punishment area--as well as other areas of the law such as abortion; gender equality; gay and lesbian rights; free speech; and
religious establishment--without seeking to understand the legal ideas with which the justices themselves are engaged. Smith
does an admirable job of summarizing these legal ideas in the criminal punishment context, but he ultimately fails to accord them
much explanatory significance. My point is not that Rehnquist and his conservative colleagues faithfully apply the law without
regard to their own political views, but that any effort to unpack the relative weight of these influences must actually investigate
the development of legal ideas without reducing them to a series of instrumental arguments in support of idiosyncratic policy
preferences. When Smith argues, for example, that "[t]he conservative justices' decisions that usually disfavor assertions of
rights by criminal defendants and prisoners are consistent with and presumably a consequence of the policy preferences
embodied within their version of a judicial restraint philosophy of judging" (34), he dismisses as an illegitimate personal
preference a conservative conception of judicial power which in fact has deep constitutional roots.
While I agree with Smith that this conservative vision must ultimately be rejected for its inadequate realization of the
constitutional norms of liberty and equality, I am not persuaded that this longstanding tradition (like other, competing,
constitutional traditions) has been simply a rhetorical cover for the justices who have advanced it. Court scholars who share this
recognition of the constitutive role of legal ideas may ultimately be disappointed with Smith's book, though I would continue to
recommend it as a valuable starting point for students interested in criminal procedure.
CASES
MAPP v. OHIO, 367 U.S. 643 (1961)
MIRANDA v. ARIZONA, 384 U.S. 436 (1966)
