Tuesday, November 15, 2011


Ken Kersch

Consider the outlier.

In several recent cases, courts have imposed criminal sentences of life without parole in what seem to be rather extreme rulings. A judge in Florida recently sentenced a twenty-six year old man who had downloaded child pornography onto his computer to life without parole – a punishment, these days, typically employed for homicide (severe punishments for crimes considerably less serious than murder were more common before the civil rights movement/Warren Court, especially in the South). The Supreme Court this term will also consider two cases (Jackson v. Hobbs; Miller v. Alabama) involving 14 year olds who were sentenced to life without parole in cases involving homicides (although the deaths, it appears, were not proximately caused by the appellant: it one case, the victim was shot by his accomplice, and in the other, the victim died of smoke inhalation in his home after having been beaten, and his house was set on fire). These cases follow in the wake of last year’s Supreme Court decision in Graham v. Florida (2010), which voided on 8th Amendment grounds a sentence of life without parole for armed burglary (not including homicide)(and Roper v. Simmons (2005), which, also on 8th Amendment grounds, voided the imposition of the death penalty on youths under 18 years of age).

Notably, all three of the current cases come out of the South (Florida, Alabama, Arkansas). They thus put me in the mind of an important dynamic of American constitutional development that has been identified by the constitutional historians Michael Klarman and Scot Powe. In
From Jim Crow to Civil Rights (2004), Klarman argues that one important role played by the Supreme Court – even early on, long before Brown – was to set minimal national standards for criminal procedure (often in cases involving race – see the Scottsboro cases). In The Warren Court and American Politics (2000), Powe specifically focuses on that Court’s role in integrating regional and religious “outliers” into the (northern, Kennedy-Johnson, liberal) national consensus on punishment, and other issues.

To abstract a bit more, this run of cases also put me in the mind of the model of courts set out in political scientist Martin Shapiro’s indispensable Courts: A Comparative and Political Analysis (University of Chicago, 1986) – which I can’t recommend highly enough. Shapiro anchors his developmental models of judiciaries on a structural prototype of courts as triads for resolving disputes, operating on a continuum from go-betweens to mediation to arbitration to (formal) legal rulings. He illustrates his understanding in four longue duree case studies (England, France, China, and the Islamic Near East) of the developmental relationship over time between the formation of central states, and their need to impose their core public policies on peripheral regions and potentially rivalrous groups and power centers, and the establishment and supervision of national judiciaries.

While I suppose a traditional law professor approach to the matter would be to have a long debate over the meaning of the word “unusual” in the 8th Amendment, it seems obvious to me that (as Klarman and Powe have recognized) the issue is more general. The integration of outliers, I would note, falls naturally into Shapiro’s schema.

Coming at this from a developmental perspective, I’m led to wonder when the aggressive exercise of this integration function of national judiciaries is likely to be successful, and when not. Resistance to integration from peripheries, and alternative power centers, is, of course, common (the Anti-federalist Brutus, in opposing the U.S. Constitution’s Article III, warned that a federal court system’s natural tendency would be integrative). Powe’s Warren Court may have been Brutus’s worst nightmare. It is an interesting case study, though, because, by many measures, it was fabulously successful, and durable. Perhaps this was because, as Powe suggests, the new legal doctrine forged by that Court was in synch with ambient public philosophy -- Kennedy-Johnson liberalism -- which has never fully receded. On the other hand, the integrative Warren Court was harshly criticized, and helped spawn a vigorous conservative counter-movement.

Today’s courts seem to lack the relatively coherent public philosophy that underwrote Warren Court liberalism. In its place, there seems to be a lot of counting going on – a taking of head counts of American states, for example, which seems to me to suggest hesitance and insecurity (in its reliance on numbers, as opposed to principles). There is also a well-known push to count heads outside the country as well – a favorite of Justice Kennedy, who has written many of these opinions. Maybe this is congealing into its own vigorous public philosophy, a successor to the Kennedy-Johnson liberalism in Powe’s account.

Of course, there are all manner of possible permutations when it comes to core-periphery integration through judicial rulings. At one extreme is uniformity based on principle (as opposed to head-counts). Then there are centrally imposed rules arising out of head-counts. Then there is floor-setting, with a hostility to variance (incorporation, as typically practiced). Then floor-setting with openness to variance (Scottsboro; John Marshall Harlan’s approach to incorporation, including in criminal cases like the ones now coming before the Court). And so forth.

I wonder where we are on all this -- not the least, as a matter of politics, in a post-civil rights movement era, with an ascendant conservative movement (rhetorically) committed to localism and states rights, at long last without the taint of (hard-form) racism (indeed, as I set out in a forthcoming Maryland Law Review article), with an aggressively-trumpeted anti-racism, tied to a robust commitment to natural law.

Looking at these matters as questions of core-periphery integration through rulings by national judiciaries policing outliers, in the manner of Shapiro, may simply be another point of entry into familiar dynamics. But – as Shapiro’s own influence on the study of European integration through courts suggests -- it might also have some heuristic value for students of contemporary American constitutional law.

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