The Court and Law Enforcement

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The Court and Law Enforcement

Magazine article

By: William J. Stuntz

Date: July 25, 2005

Source: The New Republic Online. "The Court and Law Enforcement." 〈〉 (accessed March 28, 2006).

About the Author: William J. Stuntz is a professor at Harvard University's School of Law. He is also a prolific writer, whose areas of particular interest are criminal policy and procedure, crime law, and the relationship between the law and Christianity.


The Supreme Court is the highest legal authority in the United States. Its mission, overall, is the protection, preservation, and interpretation of the Constitution (and, thereby, is also the ultimate authority on Constitutional law). The United States has the oldest written Constitution still in active use.

The Supreme Court is tasked with the ultimate ability to discern whether or not legislation or court procedural decisions (lower courts) in any way conflict with the text or the spirit of the Constitution. If that is found to be the case, the Court has the authority to take action in order to preserve the law of the land, whether that means overturning a lower court decision or vacating a piece of legislation.

The judicial system in the United States is set up along two parallel tracks: state and federal court systems. Within each of those, there are two more parallel processes, for civil and criminal proceedings. A significant portion of the strength and power of the United States government lies with the states, with discrete authority and oversight left for the federal government. State law violations, which account for the vast majority of matters that go before the criminal justice system, are litigated within the state courts; federal violations are tried at the federal level. Illegal activity can be prosecuted at either the civil or criminal level, each of which has different policies and procedures, as well as varying standards of proof and types of punishment. The rules of evidence are quite similar across both types of proceedings. Among the greatest differences between civil and criminal trials are the burdens of proof: in a civil trial, guilt need only be determined by a preponderance of evidence; the criminal code requires certainty beyond a reasonable doubt. In a criminal trial, there is very little right to appeal an unfavorable outcome for the prosecution; that is not the case in a civil suit. Criminal convictions can carry sentences involving incarceration, civil penalties are typically limited to monetary judgments.

Both state and federal court system have three levels. At the state level, courts are arranged by geographic locale, as well as by level of authority. The trial court is at the lowest, or first level, in which cases are tried before a judge, a jury may be utilized, witnesses and evidence are presented, and the final arbiter (judge, or sometimes a jury) decides the facts of the case and determines an outcome based on the law(s) under consideration. The next level is the court of appeals, employed primarily to adjudicate disputed decisions. The highest court in the state is the State Supreme Court, which is considered the highest authority on interpretation of state law.

In the federal system, courts are organized both by locality and by hierarchy (district court, court of appeals, and federal supreme court). At the lowest level are the district courts, which adjudicate basic civil and criminal proceedings. The federal court of appeals generally hears cases in which the losing party believes that there has been an error made in interpretation or application of the relevant law. If the judges at the federal court of appeals are in disagreement (there are three judges per case at that level), the parties engaged in litigation may request a hearing by the members of the Supreme Court. The highest court in the nation has nine judges, at least four of which must agree that a case should be heard in order for it to be accepted.


Supreme Court appointments are like "Law & 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 forty 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 nine thousand. 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 results 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 one hundred 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 twenty 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 thirty-three 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 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.


The Supreme Court is in session from the first Monday in October of each year until the end of June or the early part of July of the following year. Each session is called a "Term", which is composed of alternating two week long sittings and recesses. When the Supreme Court justices are sitting, they are actively hearing cases and proffering their expert legal opinions. When they are in recess, they are writing decisions and engaging in the administrative business of the Court. The process is very different at the level of the Supreme Court than it is at other judicial levels; in the initial phase, the justices do not call witnesses or see evidence presented live; there is no jury, and they generally receive written files for review, rather than actually hearing cases, when making their decisions regarding which of the vast number of cases proposed they should fully hear and consider offering their opinions on. For the selected cases, they initially review and consider all prior decisions and legal opinions rendered, as well as a short statement containing the facts and arguments of the case (called a "brief"), as presented by the attorneys for each side. When the cases are actually being heard, each side has thirty minutes to present and argue its case. At the end of each week (no cases are heard on Fridays), the justices meet to discuss the week's cases; opinions are rendered on Tuesday and Wednesday mornings, as well as on the third Monday of each sitting.

The Court is comprised of a Chief Justice and eight Associate Justices. Each person is proposed for nomination by a sitting president, and goes through a senatorial approval process. Once ratified and approved, they sit on the bench for life, unless they are impeached and removed (this has never happened in the United States), or choose to retire. There is considerable public debate regarding whether the majority opinions of the incumbent justices are reflective of the dominant political climate of the moment, or whether they are more in line with the prevailing public sentiment.

There are no formal educational, professional, prior judicial, or experiential requirements for potential nominees to the Supreme Court, the president is empowered to select virtually anyone he or she deems suitable. However, the Senate Judiciary Committee questions each candidate at considerable length, and makes the final decisions regarding acceptance or rejection of nominees. The Supreme Court justices need not be expert in any area of the law, or in their understanding of the tenets of the Constitution, when they are seated, although they study those matters in great detail during their tenure, and particularly so in the rendering of opinions. The decisions of the federal Supreme Court, which was created by Article III of the Constitution of the United States, are final—there are no further appeals. Decisions made by the Supreme Court are typically based upon the principles of common law and by reference to precedent set in previous instances of similar legal cases. Opinions need not be unanimous, they need only reach majority. Both majority and dissenting opinions are rendered in written form and published for public review.



Lively, Donald E. Foreshadows of the Law: Supreme Court Dissents and Constitutional Development. Westport, Connecticut: Praeger 1992.

Smolla, Rodney A. (Editor). A Year in the Life of the Supreme Court. Durham, North Carolina: Duke University Press 1995.

Web sites "Law Center: High court bars Internet porn law enforcement" 〈〉 (accessed March 28, 2006).

Supreme Court of the United States. "The Court and Constitutional Interpretation." 〈〉 (accessed March 28, 2006).

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