Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).
The Criminal Justice System as the Enemy of Liberty
Over the last generation, few legal scholars have been more influential than Harvard Law School’s Professor William J. Stuntz. In a brilliant legal career that began as a student, and later a faculty member, at the University of Virginia School of Law – where I had the privilege of being one of his students twenty years ago – Stuntz consistently blazed new trails in criminal procedure scholarship. Before he entered the scene, much of the literature divided along the usual left-right lines. Liberals generally defended the Warren Court’s activism in criminal procedure as promoting fairness and equality, particularly for minorities and the poor, while the field’s few conservatives bitterly criticized the Court for, in effect, handcuffing the police with improper procedural mandates that made it harder to solve crimes.
Both sides, Stuntz argued, were wrong. Miranda v. Arizona (which made advice of rights a constitutional prerequisite to the admissibility of custodial confessions), Mapp v. Ohio (which required states to exclude at trial illegally seized evidence), and other controversial Warren Court decisions neither handcuffed the police nor made criminal trials more just. To the contrary, they fueled the politicization of criminal law, making law enforcement’s job easier instead of harder. They also worsened problems of unfairness and inequality by giving prosecutors enormous, virtually unchecked power to coerce innocent and guilty defendants alike to waive their constitutional rights and plead guilty.