Friday, March 23, 2012

Is the Roberts Court More Constitutionally Ambitious than the Warren Court?

Mark Tushnet

No, this isn't another post about the Affordable Care Act litigation. It's about the Court's decisions earlier this week about the constitutional regulation of plea bargaining by means of the Sixth Amendment's requirement of effective (or not incompetent) assistance of counsel. Justice Kennedy's opinions emphasized the predominance of the resolution of criminal cases by pleas rather than through trials. Most of the Court's regulation of the criminal process has focused on the trial itself, with exclusionary rules the vehicle for influencing police conduct.

For me, the contrast between the plea-bargaining decisions and the Warren Court's decision in Terry v. Ohio is quite striking. In Terry Chief Justice Warren openly acknowledged the Court's inability to regulate the vast majority of police-citizen interactions through the exclusionary rule. The tools the courts had available, the Court said, were inadequate to the task of such regulation. Justice Scalia's dissent in the plea-bargaining points made the same assertion about the tools available to regulate plea bargaining. Justice Kennedy responded that over time the courts could be expected to develop a working toolkit for the problem. It's interesting to wonder how things might have worked out had the Warren Court taken the same approach to police-citizen interactions on the street.

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