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 Originalists, Politics, and Criminal Law
on the Rehnquist Court
Rachel E. Barkow*

Abstract
One of the most important legacies of the Rehnquist Court's criminal law ju-
risprudence is its reinvigoration of the Constitution's jury guarantee. The
Court has made clear that legislators cannotpass laws mandating increases in
punishment unless those laws are applied by juries, not judges. The Court has
therefore rejected existing sentencing laws in numerous states and the federal
system, and sentencing policy is under scrutiny as never before.
The Court's sentencing cases are not only significantfor their impact on day-
to-day plea bargainingand trial practice in the criminal justice system; they
also provide a concrete and important example of the power of law and legal
methodology-and not simply politics-in Supreme Court decision making.
The sentencing decisions are out of step with what attitudinalistpolitical scien-
tists would have predicted from the right-leaning Court. The cases are the
product of an alliance between Justices that the attitudinalistsview as the ex-
treme left and right of the Court; they are the product of a partnershipbetween
the Court's self-proclaimed originalistsand those members of the Court who
are most sensitive to the role of the judiciary in protectingcriminal defendants'
rights from majority politics. This area of criminal law is therefore an impor-
tant reminder of the significance of legal methodology to case outcomes.
In addition to documenting the importance of the sentencing cases, this Article
uses those cases as a springboardfor a larger analysis of the relationship be-
tween originalists,politics, and criminal law on the Rehnquist Court. By re-
viewing all of the Rehnquist Court's criminal opinions in argued cases during
the ten-year period from the October 1994 Term through the 2003 Term, this
Article shows that the Justices' votes in criminalcases do not fit neatly into the
attitudinal model. While a review of those cases confirms the conventional
view that the Court's liberal bloc voted for criminal defendants more fre-
quently than the Court's conservatives in nonunanimous cases, the more inter-
esting pattern is the variation among the Court's conservatives in noncapital
criminal cases in which the five conservativesdisagreedamong themselves. In
the fifty-five noncapital criminal cases in which the Court's conservatives did
not vote as a bloc, Justices O'Connor,Scalia, and Kennedy each voted for the
defendant twenty-four times, Justice Thomas voted for the defendant in eigh-
teen cases, and Chief Justice Rehnquist in fourteen cases. In several of the
most important constitutional decisions of that period, including but not lim-
ited to the sentencing cases, the conservative originalists voted for defendants
while the pragmatist conservatives ruled for the government. The sentencing
cases are therefore part of a largerpattern that reveals the relationship between
originalism,politics, and criminal law to be far more complicated than is com-
monly believed.

* Associate Professor, New York University School of Law. For helpful comments, I
thank Anthony Barkow, Steve Bibas, Barry Friedman, Jim Jacobs, and Jeffrey Segal. I thank
Christopher Deal, Alex Goldenberg, Noam Haberman, Julia Stahl, and Alex Talesnick for excel-
lent research assistance. I am grateful to Steve Saltzburg, Chip Lupu, and The George Washing-
ton Law Review for inviting me to participate in this Symposium.

August 2006 Vol. 74 No. 5/6

1043
1044 The George Washington Law Review [Vol. 74:1043

Introduction
Unlike the Warren Court, the Rehnquist Court is unlikely to be
remembered for having established sweeping criminal justice reforms that
protect the interests of criminal defendants.1 On the contrary, the conven-
tional wisdom about the Rehnquist Court is that its dominant mission in
criminal law was to overrule or limit cases from the Warren Court era in
2
order to cut back on criminal procedure protections.
While that might be the predictable story to tell about the Rehnquist
Court's approach to criminal law, it ignores a less frequently observed but
much more interesting aspect of the Court's criminal law jurisprudence. The
same Rehnquist Court that narrowed the reach of Warren Court precedents
interpreting the Fourth and Fifth Amendments simultaneously expanded
criminal defendants' jury trial rights under the Sixth Amendment. Indeed,
the Rehnquist Court was one of the most vigorous protectors of the jury
guarantee in Supreme Court history.
The Rehnquist Court's interpretation of the Constitution's jury guaran-
tee led it to overturn modern sentencing laws that required judges, not juries,
to make key findings that increased a defendant's sentence. To understand
the significance of this development, it is important to keep in mind that for
almost two hundred years, sentencing was an almost lawless enterprise 3 and

1 See, e.g., Peter Arenella, Rethinking the Functions of CriminalProcedure: The Warren
and Burger Courts' Competing Ideologies, 72 GEO L.J. 185, 189-90 (1983) (describing the War-
ren Court's revolution as an effort to "secure state conformity with ... due process ideals");
Jerold H. Israel, CriminalProcedure, the Burger Court, and the Legacy of the Warren Court, 75
MICH. L. REV. 1319, 1325-26 (1977) (presenting the Warren Court's chief criminal procedure
innovations); Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two
Audiences, Two Answers, 94 MICH. L. REV. 2466, 2471-72 (1996) (outlining the Warren Court's
expansion of "conduct" rules governing police activity).
2 See, e.g., Stephen F. Smith, The Rehnquist Court and CriminalProcedure, 73 U. COLO.
L. REV. 1337, 1358 (2002) [hereinafter Smith, Criminal Procedure] (noting that "the Rehnquist
Court has distinguished, created exceptions to, and reinterpreted" Warren Court precedents in a
manner that has been "highly effective in producing the 'law and order' results Nixon and Rea-
gan promised to deliver"); id. at 1344 n.25 (noting how Miranda has been limited by the Court);
Stephen F. Smith, Activism as Restraint: Lessons from CriminalProcedure,80 TEX. L. REV. 1057,
1114 (2002) (arguing that the Rehnquist Court "fundamentally reshap[ed] Warren Court crimi-
nal procedure doctrines" by limiting their effect on legitimate law enforcement practices);
Steiker, supra note 1, at 2469-70 (asserting that the Rehnquist Court largely affirmed the War-
ren Court's standards for police conduct, while dramatically changing the "decision" rules that
determine the consequences of unconstitutional conduct); Kathleen M. Sullivan, The Jurispru-
dence of the Rehnquist Court, 22 NOVA L. REV. 743, 745 (1998) ("Perhaps nowhere has the
Court's conservative trend been more apparent than in the area of criminal justice."). For a
sampling of Rehnquist Court cases cutting back on criminal procedural protections of the War-
ren Court, see Dickerson v. United States, 530 U.S. 428, 437-38, 438 n.2 (2000) (surveying
Court's delineation of exceptions to Miranda and statements that Miranda is prophylactic); Da-
vis v. United States, 512 U.S. 452 (1994) (allowing continued custodial questioning after suspect
receiving Miranda warnings ambiguously invoked his right to counsel); New York v. Harris, 495
U.S. 14 (1990) (refusing to suppress defendant's confession at police station following proper
Miranda warnings even though police had arrested defendant in his home without a warrant in
violation of Payton v. New York, 445 U.S. 573 (1980)); Murray v. United States, 487 U.S. 533
(1988) (strengthening "independent source" doctrine to allow introduction of evidence acquired
by a legal search preceded by an illegal search generating the same evidence).
3 Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration,101 YALE
2006] Originalists, Politics,and Criminal Law 1045

the Supreme Court paid little attention to sentencing practices that had al-
lowed significant erosion of the jury's power. The Rehnquist Court broke
with this long tradition when it began overturning sentencing laws for violat-
ing the jury guarantee. Beginning in 20004 and continuing through recent
Terms, 5 the Court has made clear that legislators cannot pass laws mandating
increases in punishment unless those laws are applied by juries, not judges.
The Court has therefore rejected existing sentencing laws in numerous states
and the federal system, causing a massive upheaval in sentencing practices
that is as dramatic in its effects as the major Warren Court criminal cases.
The Court's jury jurisprudence is thus an important part of the Rehn-
quist Court's legacy because of the significant impact it has had on day-to-day
plea bargaining and trial practice in the criminal justice system. 6 Sentencing
policy is under scrutiny as never before, as the Court's cases have sparked
legislative, executive, and judicial reforms. The importance of the jury to the
criminal process has reemerged as a key consideration.
But the Court's jury cases deserve attention for another reason as well.
These cases provide a concrete and important example of the power of law
and legal methodology-and not simply politics-in Supreme Court decision
making. 7 The Court's Sixth Amendment decisions are out of step with what
attitudinalist political scientists would have predicted from the right-leaning
Court. 8 A Court with more conservatives should, according to the attitudinal

L.J. 2043, 2044 (1992) ("[W]ith respect to sentencing, we gave free rein to our ignorance and
neglected our expertise in the law. We gave lawless power to the judges.").
4 Apprendi v. New Jersey, 530 U.S. 466 (2000).
5 Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220
(2005).
6 The jury guarantee was not the only aspect of the Sixth Amendment revitalized by the
Rehnquist Court. The Rehnquist Court similarly reinvigorated the Sixth Amendment right to
confrontation. In 2004, in Crawford v. Washington, 541 U.S. 36 (2004), the Court held that the
Confrontation Clause does not allow the introduction into evidence of testimonial statements
unless the defendant has an opportunity to cross-examine the declarant. This decision over-
turned the prior test for admitting this evidence, established in Ohio v. Roberts, 448 U.S. 56
(1980), which allowed courts to admit testimonial hearsay even if the defendant had no opportu-
nity to confront the witness, as long as the trial judge found that the evidence was reliable.
7 The definition of politics here is borrowed from Barry Friedman: it "refer[s] to any
influence brought to bear by the legitimate institutions and actors of democratic government
that reflects something other than the individual judge's best judgment of the way the law deter-
mines a case's merits." Barry Friedman, The Politics of JudicialReview, 84 TEX. L. REV. 257, 271
(2005).
8 The attitudinal model is dominant among political scientists. See Frank B. Cross, Politi-
cal Science and the New Legal Realism: A Case of Unfortunate InterdisciplinaryIgnorance, 92
Nw. U. L. REV. 251, 265 (1997) ("Among many political scientists, aspects of the attitudinal
model have become a virtual truism."); Stephen M. Feldman, The Rule of Law or the Rule of
Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making, 30 L.
& Soc. INQUIRY 89, 90 (2005) ("Today, few political scientists would dispute that, within their
discipline, the leading approach to adjudication is the 'attitudinal model,' which hypothesizes
that Supreme Court justices vote their political preferences or ideologies."). The leading advo-
cates of the attitudinal approach, Jeffrey Segal and Harold Spaeth, have concluded that, "at the
level of the U.S. Supreme Court, how the justices decide their cases depends upon the free play
of their individual personal policy preferences." JEFFREY A. SEGAL & HAROLD J. SPAETH, THE
SUPREME COURT AND THE ATTITUDINAL MODEL 360 (1993); see also id. at 64-65 (arguing that
the Supreme Court Justices base their decisions on their political ideologies and personal policy
1046 The George Washington Law Review [Vol. 74:1043

model, curtail the rights of criminal defendants, not expand them. 9 Even
more interesting is that the Sixth Amendment cases are not the result of the
Court's swing Justices joining forces with the Court's liberal wing. These
cases are instead the product of an alliance between Justices that the atti-
tudinalists view as the extreme left and right of the Court. 10
It is therefore not politics-or, more specifically, not politics alone-that
explains the Court's Sixth Amendment cases." Rather, the Sixth Amend-
ment's resurgence under the Rehnquist Court is the product of a union be-
tween two interpretive methodologies that reach the same conclusion in this
setting: it is a partnership between the Court's self-proclaimed originalists
(Justices Scalia and Thomas) and those members of the Court who are most
sensitive to the role of the judiciary in protecting criminal defendants' rights
from majority politics (Justices Stevens, Souter, and Ginsburg).
While it is often hard to pin down the independent function of law in any
given case, and it is easy to conclude that all legal decision making boils down
to political preferences, this is an area that highlights the shortcomings in that
simplistic account of legal decision making. Judges-including those on the
Rehnquist Court-are not simply political actors. Legal principles and the-
ory matter. Justices Scalia and Thomas have shown no indication that they
are particularly concerned with defendants' interests in other contexts, 12 but
they are vigorous enforcers of the Sixth Amendment's jury trial right because
they appear13 to believe that their chosen legal methodology requires such a
conclusion.

preferences); Howard Gillman, What's Law Got to Do with It? Judicial Behavioralists Test the
"Legal Model" of Judicial Decision Making, 26 L. & Soc. INQUIRY 465, 466 (2001) (noting that
behavioralist scholars are of the view that "law has almost no influence on the justices" of the
Supreme Court).
9 Lee Epstein et al., The Supreme Court and Criminal Justice Disputes: A Neo-Jnstitu-
tional Perspective, 33 AM. J. POL. ScI. 825, 838 (1989) (predicting significantly less support for
criminal defendants when Republicans control the Court). As Stephen Smith observes, "if there
was a single issue that gave rise to the Rehnquist Court, it was criminal procedure" and the
movement to be tougher on crime. Smith, Criminal Procedure,supra note 2, at 1338.
10 See Theodore W. Ruger et al., The Supreme Court ForecastingProject: Legal and Politi-
cal Science Approaches to PredictingSupreme Court Decisionmaking, 104 COLUM. L. REV. 1150,
1158 n.29 (2004) (arraying Justices in spatial attitudinal order with "Stevens at one pole, fol-
lowed in order by Ginsburg, Breyer, Souter, O'Connor, Kennedy, Rehnquist, Scalia, and
Thomas").
11 See Richard E. Myers II, Restoring the Peers in the "Bulwark": Blakely v. Washington
and the Court's Jury Project, 83 N.C. L. REV. 1383, 1390 (2005) (observing that the lineup in
Blakely "suggests that there is something more at play than the political scientists' models can
explain").
12 See, e.g., Roper v. Simmons, 543 U.S. 551, 608 (2005) (Scalia, J., dissenting, joined by
Rehnquist, C.J. and Thomas, J.) (arguing that the execution of an inmate convicted of a crime
before the age of eighteen is not prohibited by the Eighth Amendment); Atkins v. Virginia, 536
U.S. 304, 337-54 (2002) (Scalia, J., dissenting, joined by Rehnquist, C.J. and Thomas, J.) (con-
cluding that the execution of a mentally retarded inmate is not prohibited by the Eighth Amend-
ment); Dickerson v. United States, 530 U.S. 428, 444-46 (2000) (Scalia, J., dissenting, joined by
Thomas, J.) (rejecting the majority's upholding of Miranda in the face of a contrary federal
statute); Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting, joined by Scalia, J.)
(claiming that the wanton and unnecessary infliction of pain on a state inmate by a prison guard
does not violate the Eighth Amendment in the absence of a significant injury).
13 For a view that originalism does not dictate the results reached in the Apprendi line of
2006] Originalists, Politics, and Criminal Law 1047

This area of criminal law is therefore an important reminder of the sig-

nificance of legal methodology to case outcomes. In particular, and perhaps
most significantly, the Court's jury cases illustrate that the interpretive meth-
odology of originalism is not always the most conservative choice when it
comes to criminal matters; sometimes, the Court's conservative originalists
are to the left of those conservative Justices who take a more flexible, prag-
matic approach.1 4 Chief Justice Rehnquist, although an occasional adherent
to originalism, is more fairly characterized as a pragmatist who took into ac-
count a variety of arguments in resolving a case.1 5 The same is true of Jus-
tices O'Connor and Kennedy.1 6 All three dissented in the Court's jury cases,
while the Court's conservative originalists sided with the Court's liberal wing.
This trend goes beyond jury cases. By reviewing all of the Rehnquist
Court's criminal opinions in argued cases during the ten-year period from
Justice Breyer's addition to the Court in the October 1994 Term through the
2003 Term, it is possible to determine whether the jury cases are outliers or
are part of a larger pattern among the Court's Justices that does not neatly
correspond to their spatial array in an attitudinal model. While a review of
those cases confirms the conventional view that the Court's liberal bloc voted
for criminal defendants more frequently than the Court's conservatives in
nonunanimous cases, the more interesting pattern is the variation among the
Court's conservatives in noncapital criminal cases in which the five conserva-
tives disagreed among themselves.2 7 In the fifty-five noncapital criminal
cases in which the Court's conservatives did not vote as a bloc, Justices
O'Connor, Scalia, and Kennedy each voted for the defendant twenty-four
times, Justice Thomas voted for the defendant in eighteen cases, and Chief
Justice Rehnquist in fourteen cases. In several of the most important consti-
tutional decisions of that period, including but not limited to the jury cases,
the conservative originalists voted for defendants while the pragmatist con-
servatives ruled for the government. The jury cases are therefore part of a

cases, see Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of
Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 GEO. L.J. 183 (2005).
14 The terms "originalist" and "pragmatist" can mean many things. Here the label
"originalist" is attached to those Justices who proclaim to be such, and no attempt is made to
evaluate their fidelity to the principle. "Pragmatist" is used as a catch-all label for those con-
servative Justices who do not espouse any particular ideology and who take into account a vari-
ety of factors in reaching their decisions, of which originalism or history may or may not be one.
15 Jeffrey Rosen, Rehnquist the Great?, ATLANTIC MONTHLY, Apr. 2005, at 79, 79, 88
(describing Rehnquist as "essentially a pragmatist who believed in certain core conservative val-
ues" and noting that "he invoked constitutional history when it was convenient and otherwise
ignored it"); id. at 90 (quoting Jack Goldsmith's description of Rehnquist as "'in a different,
older, more pragmatic conservative tradition"' and someone who "'often looks beyond text and
history in discovering the relevant legal intentions"').
16 Id. at 90 (noting that Rehnquist, O'Connor, Kennedy, and Breyer are "the more
pragmatically minded justices").
17 The labels "conservative" and "liberal" are overly simplistic, of course. There are many
varieties of "conservatives," including cultural conservatives, libertarian conservatives, fiscal
conservatives, etc. And there are similarly many types of "liberals," including cultural liberals,
libertarian liberals, welfare-state liberals, etc. The terms are used here to signify where Justices
are arrayed on the attitudinal model. See supra note 10.
1048 The George Washington Law Review [Vol. 74:1043

larger pattern that reveals the relationship between originalism, politics, and
criminal law to be more complicated than is commonly believed.
This Article explores this relationship in two parts. Part I documents the
revolutionary nature of the Rehnquist Court's jury cases, both in terms of
their historical significance and their transformation of modern sentencing
practices. These cases deserve to be highlighted in a symposium on the
Rehnquist Court's legacy because they have had the largest effect on criminal
justice practice and have revolutionized the field of sentencing law. In addi-
tion, these cases are the most consequential examples of the alliance between
the Court's liberal Justices and its conservative originalist Justices that pro-
duces outcomes favorable to criminal defendants. Part II then explores how
these cases are part of a larger pattern in which the self-proclaimed original-
ists join forces with the Court's liberal members in criminal cases, an alliance
that challenges the attitudinal model.1 8

L The Jury and the Rehnquist Court

The Rehnquist Court's concern with the criminal jury's power in a series
of cases dealing with mandatory sentencing laws was one of the most impor-
tant developments in criminal law in modem Court practice. Section A
briefly traces the Supreme Court's approach to the criminal jury in the period
before the Rehnquist Court and reveals a consistent pattern of decisions that
allowed erosion of the jury's power. Section B then describes how the Rehn-
quist Court's revolutionary sentencing cases departed from this practice and
explains how the decisions came about through an alliance between the
Court's conservative originalists and its more liberal members.

A. The Supreme Court's Jury Jurisprudence in the Period Before the

Rehnquist Court
In the Nation's early history, the criminal jury held a place of promi-
nence in the constitutional order.1 9 Even before the adoption of the Bill of
Rights and the Sixth Amendment, the Constitution provided that "[tihe Trial
of all Crimes, except in Cases of Impeachment, shall be by Jury."20° The
placement of the jury guarantee in the main body of the Constitution re-
flected the reverence with which the Framers viewed the jury. "For Ameri-
cans after the Revolution, as well as before, the right to trial by jury was

18 To be sure, those who proclaim adherence to originalism may vote for results in other
contexts-including some criminal matters, like those involving the death penalty-that are not
as protective of individual liberty as competing methodologies. See infra Part II. This Article
takes no position on the overall value of originalism or those who follow it. Rather, it seeks only
to highlight that there is a stronger relationship between the votes of self-proclaimed originalists
and individual liberty in noncapital criminal cases than is commonly recognized, and that there is
considerable evidence that there are areas where the Court's conservative Justices reach differ-
ent outcomes in important criminal cases at least in part because of their stated legal
methodologies.
19 For a more detailed exploration of this history, see Rachel E. Barkow, Recharging the
Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L.
REV. 33 (2003).
20 U.S. CONsT. art. III, § 2, cl. 3.
2006] Originalists,Politics, and Criminal Law 1049

probably the most valued of all civil rights." 21 Alexander Hamilton observed
in The FederalistPapersthat "[t]he friends and adversaries of the plan of the
convention, if they agree in nothing else, concur at least in the value they set
22
upon the trial by jury.
These early juries had much responsibility. As is the case today, early
juries were responsible for resolving factual disputes and issuing general ver-
dicts in which they applied the law to their factual findings. But early juries
had even greater responsibilities than juries do today, for they also decided
questions of law.23 Lawyers made competing legal arguments to the jury, and
judges often deferred to the jury on questions of law. 24 Many states passed
laws designed to protect the jury's ability to decide legal questions from judi-
25
cial interference.
The jury's power to apply criminal laws made it a formidable check on
government abuse. Without the jury's agreement, the state could not convict
an individual and impose criminal punishment. The jury thus protected indi-
26
viduals from legislative, executive, and judicial abuse of power.
As law grew more complex and lawyers and judges became professional-
ized in the nineteenth century, 27 the Supreme Court allowed legislators and
judges to take some power away from the criminal jury. Four cases illustrate
the Court's acceptance of a diminution in the jury's role and a shift of power
28
from the jury to the government.
The first crucial turning point occurred in 1895 with the Supreme Court's
decision in Sparf v. United States, 29 in which the Court concluded that the
jury did not have the right to decide questions of law. Although Justice
Gray's dissent documented the long history and tradition of criminal juries
deciding legal questions, 30 the majority rejected the argument that this estab-

21 WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LE-

GAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 96 (1994).
22 THE FEDERALIST No. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
23 See NELSON, supra note 21, at 21-28 ("The frequent use of the general issue, which left
to the jury the ultimate determination of the legal consequences of the facts of a case; the prac-
tice of counsel and judges giving the jury conflicting instructions on the law, which permitted the
jury to select the rules for determining the legal consequences of facts; and the infrequency with
which jury verdicts were set aside after trial tended to give the jury wide power to find the
law."); Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582, 590-96
(1939) (listing instances where juries had the authority to decide legal questions).
24 NELSON, supra note 21, at 21-28; Howe, supra note 23, at 590-96; Matthew P. Harring-
ton, The Law-Finding Function of the American Jury, 1999 Wis. L. REV. 377, 379, 384-85,
402-03.
25 See Harrington, supra note 24, at 391.
26 See Barkow, supra note 19 (elaborating on this argument in greater detail).
27 See KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 211-25 (1989)
(discussing the professionalization of lawyers in the nineteenth century).
28 Although the Court in Duncan v. Louisiana, 391 U.S. 145 (1968), determined that the
Sixth Amendment applies to the states through incorporation under the Fourteenth Amend-
ment, the following decisions demonstrate the Court's willingness to limit the substance of that
right even though it extended its scope.
29 Sparf v. United States, 156 U.S. 51 (1895).
30 Id. at 114-83 (Gray, J., dissenting); see also Barkow, supra note 19, at 66; Howe, supra
note 23, at 590-96; David C. Brody, Sparf and Dougherty Revisited: Why the Court Should In-
struct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 98-101 (1995) (describing the
1050 The George Washington Law Review [Vol. 74:1043

lished that the jury has a right to decide legal questions. Instead, the majority
acknowledged only that the jury has the power to decide legal questions by
virtue of its ability to issue a general verdict and to apply law to particular
facts. 31 Because the Court concluded that this power did not translate into a
right, however, Sparf allows a judge to instruct the jury that it is bound by the
judge's interpretation of the law. 32 In addition, lawyers are also no longer
permitted to make legal arguments directly to the jury or to encourage the
jury to nullify the law. 33 Sparftherefore transferred considerable power from
juries to judges because it made legal questions the exclusive domain of
judges.
The Supreme Court's decision in Williams v. New York 34 in 1949 was a
second pivotal decision, for it had the effect of allowing further erosion of the
jury's power by upholding broad sentencing authority for judges. In the Na-
35
tion's early history, most criminal laws dictated mandatory punishments.
Thus, the jury's decision whether or not to acquit a defendant under a partic-
ular law established the sentence a defendant would receive. 36 By the end of
the nineteenth century, the dominant model had shifted to a rehabilitative
theory of punishment and indeterminate sentencing, under which judges had
the discretion to make key factual findings that set the ceiling on a defen-
dant's sentence within a wide statutory sentencing range, with the ultimate
release date to be determined by a parole official. 37 In Williams, the defen-
dant challenged this scheme, arguing that the trial judge improperly sen-
tenced him to death on the basis of information that appeared in a
presentence report, thereby depriving him of due process and his right to

historical role of the jury in deciding the law in criminal cases); R.J. Farley, Instructions to Juries,
42 YALE L.J. 194, 202 (1932) ("In America by the time of the Revolution and for some time
thereafter, the power to decide the law in criminal cases seems to have been almost universally
accorded the jury .... ).
31 Sparf, 156 U.S. at 102. That is, because the jury's decision to acquit a defendant is not
reviewable, the jury has the raw power to decide legal questions in a given case. See Barkow,
supra note 19, at 66-68 (describing the nullification power retained by juries).
32 Courts have recently taken Sparf one step further to conclude that judges can remove
jurors who refuse to follow their instructions on the law. See United States v. Baker, 262 F.3d
124 (2d Cir. 2001) (approving removal of a juror who refused to participate in deliberation);
United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (holding that a judge may dismiss a juror
who refuses to follow applicable law).
33 See Barkow, supra note 19, at 68; Daniel C. Richman, Old Chief v. United States: Stipu-
lating Away ProsecutorialAccountability?, 83 VA. L. REV. 939, 976 (1997) (discussing evidentiary
limits on defendants' ability to "present[] evidence and arguments that explicitly court
nullification").
34 Williams v. New York, 337 U.S. 241 (1949).
35 See Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J. 951, 964-65 (2003)
("Nineteenth-century sentencing schemes were tightly controlled by legislatures. As late as
1870, state legislatures commonly set a specific period of incarceration for each offense.").
36 Barkow, supra note 19, at 70-71 ("At common law, '[t]he substantive criminal law
tended to be sanction-specific,"' which "gave jurors a de facto sentencing function because their
acquittal on a greater charge would dictate a lesser sentence or give judges the authority to
impose a lesser sentence." (quoting Apprendi v. New Jersey, 530 U.S. 466, 479 (2000))).
37 See Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 738-41 (2005)
(describing the rise of the rehabilitative theory of punishment and the indeterminate sentencing
model); Douglas A. Berman, Reconceptualizing Sentencing, 2005 U. CHi. LEGAL F. 1, 3-4
(same).
2006] Originalists,Politics, and Criminal Law 1051

confront the witnesses against him. 38 The Supreme Court rejected these ar-
guments on the theory that judges pursuing a rehabilitative model needed
this kind of information to make informed judgments. 39 Although the Court
in Williams did not directly face a challenge based on the defendant's right to
trial by jury, its decision had the effect of limiting the jury's power, for the
Court approved of a fact-finding role for judges-finding facts regarding the
defendant's blameworthiness and increasing his or her sentence on that ba-
sis-that arguably belonged to the jury.40
A third moment in which the Supreme Court allowed significant erosion
of the jury's power came in 1971 when the Court, in Santobello v. New
York, 41 accepted plea bargaining as a legitimate government practice. 42 Plea
bargaining had existed in some form for most of the Nation's history, in large
part because it allowed prosecutors (and later, courts) to ease the burden of
their caseloads. 43 As the number of criminal cases increased, so, too, did plea
bargaining."a Although jury trials remain an option even under a system
dominated by plea bargaining because a defendant can reject a plea and go to
trial, the existence of plea bargaining undermines the jury's power because it
allows prosecutors to penalize defendants who exercise their jury trial right.
Precisely because it undercuts the constitutional procedure for criminal cases,
plea bargaining, although prevalent, was held in disrepute and operated as a
shadow practice for most of the Nation's history. 45 It was not until Santobello
that plea bargaining received the imprimatur of Supreme Court acceptance.
The Court reasoned that bargaining had become "an essential component of
the administration of justice" and remarked that "[i]f every criminal charge
were subjected to a full-scale trial, the States and the Federal Government
would need to multiply by many times the number of judges and court facili-
ties."'46 The government's reliance on plea bargaining has only grown since
Santobello, with fewer than four percent of all federal criminal cases now
ending in jury trials. 47 Thus, largely on convenience grounds, the Court ac-

38 Williams, 337 U.S. at 245.

39 Id. at 249-51.
40 See id. at 246-49. For a persuasive argument that this indeterminate regime violates the
Due Process Clause and the Equal Protection Clause, see Stephen A. Saltzburg, Due Process,
History, and Apprendi v. New Jersey, 38 AM. CRIM. L. REV. 243, 248 (2001).
41 Santobello v. New York, 404 U.S. 257 (1971).
42 Id. at 260; see also Blackledge v. Allison, 431 U.S. 63, 76 (1977) ("For decades [plea
bargaining] was a sub rosa process shrouded in secrecy and deliberately concealed by participat-
ing defendants, defense lawyers, prosecutors and even judges.... [I]t was not until [the Court's]
decision in Santobello v. New York that lingering doubts about the legitimacy of the practice
were finally dispelled." (citation omitted)). The Court set the stage for this conclusion when it
decided in 1930 that the parties could waive jury trials. Patton v. United States, 281 U.S. 276
(1930).
43 See generally GEORGE FISHER, PLEA BARGAINING'S TRIUMPH 40-61, 116-24 (2003)
(describing prosecutorial and judicial incentives to plea bargain).
44 See id.
45 Rachel E. Barkow, Separationof Powers and the Criminal Law, 58 STAN. L. REV. 989,
1044 & n.297 (2006).
46 Santobello, 404 U.S. at 260.
47 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL
JUSTICE STATISTICS 418 tbl.5.17, 450 tbl.5.46 (2003).
1052 The George Washington Law Review [Vol. 74:1043

cepted a regime in which plea bargaining dominates 48

and, consequently, in
which power has shifted from juries to prosecutors.
The fourth area of erosion in the jury's power involved the Court's ac-
ceptance of a transfer of power from the jury to the legislature. The key
Supreme Court decision occurred just before then-Justice Rehnquist was ele-
vated to Chief Justice, with the Court's 1986 decision in McMillan v. Penn-
sylvania,4 9 which posed the question of how much control legislatures have in
defining offense elements that must be found by juries versus sentencing fac-
tors that must be found by judges. Specifically, the Court in McMillan ad-
dressed the constitutionality of Pennsylvania's Mandatory Minimum
Sentencing Act, which provided that "anyone convicted of certain enumer-
ated felonies is subject to a mandatory minimum sentence of five years' im-
prisonment if the sentencing judge finds, by a preponderance of the evidence,
that the person 'visibly possessed a firearm' during the commission of the
offense." 50 The Supreme Court rejected the defendants' argument that "if a
State wants to punish visible possession of a firearm it must undertake the
burden of proving that fact beyond a reasonable doubt."' 51 Instead, the Court
stated that "in determining what facts must be proved beyond a reasonable
doubt the state legislature's definition of the elements of the offense is usu-
ally dispositive. '52 The Court concluded that the Mandatory Minimum Sen-
tencing Act did not fall within the exception to this rule because it did not
presume the defendant guilty of a crime, nor did it alter the maximum pen-
alty for the crime. 53 Although McMillan involved a Sixth Amendment claim
as well as a due process claim, the Court's due process analysis essentially
stripped the Sixth Amendment claim of independent meaning. 54 The Court
concluded that the legislature could treat possession of a firearm as a sen-
tencing factor, and reiterated the Court's view that there is no right to a jury
at sentencing; thus the Court saw no reason to analyze the Sixth Amendment
question any further. 55 As a result, the Court gave the legislature great free-
dom to take power away from the jury by characterizing important facts as
sentencing factors instead of offense elements and requiring judges to make
those determinations. After the Court's opinion in McMillan, legislatures in-
creasingly opted to place more fact-finding responsibility with judges instead
56
of juries.

48 For an argument that this shift in power raises constitutional concerns, see Barkow,
supra note 45, at 1047-50.
49 McMillan v. Pennsylvania, 477 U.S. 79 (1986).
50 Id. at 81 (quoting 42 PA. CONS. STAT. § 9712 (1982)).
51 Id. at 84.
52 Id. at 85 (citing Patterson v. New York, 432 U.S. 197, 210 (1977)).
53 Id. at 87-88.
54 See id. at 93.
55 Id. Justice Stevens dissented and stated his view that "[o]nce a State defines a criminal
offense, the Due Process Clause requires it to prove any component of the prohibited transac-
tion that gives rise to both a special stigma and a special punishment beyond a reasonable
doubt." Id. at 96 (Stevens, J., dissenting).
56 See Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467, 1546
app. A (2001). For their part, judges interpreted ambiguous statutes as creating sentencing facts
instead of offense elements. Benjamin E. Rosenberg, CriminalActs and Sentencing Facts: Two
Constitutional Limits on Criminal Sentencing, 23 SETON HALL L. REV. 459, 477-80 (1993). In
2006] Originalists,Politics, and Criminal Law 1053

The effect of these four decisions was to allow power to shift from juries
to the government-whether to judges, prosecutors, or legislators. Together,
the cases condoned a criminal justice system in which plea bargaining became
the norm and trials the exception. For the vast majority of defendants, sen-
tencing became the most important part of their case. And the sentencing
process either consisted of the indeterminate regime approved in Williams or
some version of the mandatory regime accepted in McMillan. Thus, in
neither case did the jury hold much power, nor was there much judicial over-
sight of trial court decision making or prosecutorial and legislative judg-
ments. It was against this backdrop that the Rehnquist Court decided its
sentencing cases.

B. The Rehnquist Court's Jury Jurisprudence

Initially, it looked as if the Rehnquist Court would similarly view the

jury as having become a relatively weak part of the constitutional structure.
For example, in Almendarez-Torres v. United States,5 7 the Supreme Court de-
cided five-to-four that the legislature could make recidivism a sentencing fac-
tor to be decided by a judge, even if that factor increased the defendant's
sentence above the maximum permitted for the charged offense. A majority
of the Court did not think there was a meaningful difference between a factor
that alters a statutory maximum and the factor at issue in McMillan, which
imposed a mandatory minimum, reasoning that the mandatory minimum
could force the judge, as it did in McMillan, to impose a sentence more se-
58
vere than the maximum one the trial judge would have otherwise imposed.
Only four Justices-Justices Stevens, Scalia, Souter, and Ginsburg-thought
there was an important distinction between facts triggering a mandatory min-
imum and facts that increase a statutory maximum so that the statute should
59
be interpreted to avoid raising constitutional doubt.
The Court shifted in the 1998 Term, when Justice Thomas changed his
position and allied himself with the dissenters from Almendarez-Torres. In
Jones v. United States,60 five Justices now had constitutional doubts about a
sentencing law that required a judge to increase a defendant's sentence above

Walton v. Arizona, 497 U.S. 639 (1990), the Supreme Court even concluded that judges, not
juries, could decide whether the necessary aggravating factors were present to justify imposing
the death penalty. But see id. at 713-14 (Stevens, J., dissenting) (arguing that the Arizona statu-
tory scheme violated the jury trial guarantee and noting that, despite McMillan, it was "not too
late to change our course and follow the wise and inspiring voice that spoke for the Court in
Duncan v. Louisiana").
57 Almendarez-Torres v. United States, 523 U.S. 224 (1998). Witte v.United States, 515
U.S. 389 (1995), and United States v. Watts, 519 U.S. 148 (1997), also show early Rehnquist Court
acceptance of mandatory sentencing laws without much concern for the jury's role, though in
neither case was interference with the jury guarantee explicitly argued. See United States v.
Booker, 543 U.S. 220, 240 (2005) ("In neither Witte nor Watts was there any contention that the
sentencing enhancement had exceeded the sentence authorized by the jury verdict in violation of
the Sixth Amendment.").
58 Almendarez-Torres, 523 U.S. at 243-45.
59 Id. at 250-54.
60 Jones v. United States, 526 U.S. 227 (1999).
1054 The George Washington Law Review [Vol. 74:1043

the maximum permitted for the charged offense. 61 What concerned these
Justices was their view that this kind of sentencing law was in tension with the
Framers' vision of the jury. 62 Justice Souter's opinion for the Court in Jones
admitted that the question of sentencing enhancements was not presented at
the framing, but stated that "on a general level the tension between jury pow-
ers and powers exclusively judicial would likely have been very much to the
fore in the Framers' conception of the jury right ' 6 3 because "competition de-
veloped between judge and jury over the real significance of their respective
roles. '64 Justice Souter noted that the jury had the power "to thwart Parlia-
ment and [the] Crown" when it disagreed with the "potential or inevitable
severity of sentences" by acquitting in the face of guilt to greater charges and
issuing a verdict'65of guilty to a lesser charge-what Blackstone described as
"pious perjury. The opinion recounted England's attempts to limit the
availability of the jury to "control outcomes" during colonial times, including
the Crown's attempt to bar the right to jury trial in the Stamp Act and the
effort made to limit the jury's role in libel cases to findings of fact. 66 And it
quoted an Anti-Federalist who warned, during one of the Constitution's rati-
fication debates, that the jury trial guarantee in Article III needed to be
guarded "'with the most jealous circumspection against the introduction of
new, and arbitrary methods of trial, which, under a variety of plausible pre-
tenses, may in time, imperceptibly undermine this best preservative of LIB-
ERTY."' 67 Thus, a return to first principles of the jury's place in the
constitutional structure led the five Justices in the majority to conclude that,
"however peculiar" the sentencing factor / element distinction was "to our
time and place, the relative diminution of the jury's significance would merit
'68
Sixth Amendment concern.
These concerns eventually caused the Jones majority to do more than
doubt the constitutionality of allowing a factor that increased a defendant's
maximum penalty to go to a judge instead of a jury. The following Term, in
Apprendi v. New Jersey,69 the same 5-4 majority held that "[i]t is unconstitu-

61 In Jones, the defendant faced a fifteen-year maximum penalty on a carjacking charge.

Id. at 230-31. The statute further provided that "if serious bodily injury" resulted, the defendant
could be "imprisoned not more than 25 years." Id. at 230. And if death resulted from the
carjacking, the prison term could extend to life. Id. At Jones's arraignment, the magistrate
judge told him that he faced a maximum of fifteen years on the carjacking charge, and at trial the
district court did not instruct the jury that it needed to find serious bodily injury. Id. at 230-31.
At Jones's sentencing, however, the district court concluded that serious bodily injury resulted
from the carjacking and sentenced Jones to twenty-five years. Id. at 231.
62 See generally id. at 244-48 (discussing the jury's role in sentencing at the time of the
framing).
63 Id. at 244.
64 Id. at 245.
65 Id. (citing WILLIAM BLACKSTONE, 4 COMMENTARIES *238-39).
66 Id. at 245-47.
67 Id. at 248 (quoting THE COMPLETE BILL OF RIiHTs 477 (N. Cogan ed., 1997)).
68 Id. After Jones, the Court interpreted 18 U.S.C. § 924(c), which increases the penalty
for using or carrying a firearm in relation to a crime of violence when the weapon is a
machinegun, to require a jury finding on whether the weapon was a machinegun. See Castillo v.
United States, 530 U.S. 120 (2000).
69 Apprendi v. New Jersey, 530 U.S. 466 (2000).
2006] Originalists,Politics, and Criminal Law 1055

tional for a legislature to remove from the jury the assessment of facts," other
than recividism, 70 "that increase the prescribed range of penalties to which a
criminal defendant is exposed. 7 1 The Court concluded that "when the term
,sentence enhancement' is used to describe an increase beyond the maximum
authorized statutory sentence, it is the functional equivalent of an element of
a greater offense than the one covered by the jury's guilty verdict. '72 The
Court explained that "[tlhe degree of criminal culpability the legislature
chooses to associate with particular, factually distinct conduct has significant
implications both for a defendant's very liberty, and for the heightened
stigma associated with an offense the legislature has selected as worthy of
'73
greater punishment. According to Apprendi, it is the jury's function to
ensure that such laws properly apply to a defendant. 74 The Court therefore
held that, "[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum 75
must be
submitted to a jury, and proved beyond a reasonable doubt.
Like Justice Souter's opinion in Jones,76 Justice Stevens's majority opin-
ion in Apprendi was anchored in history. It noted that during the years sur-
rounding our Nation's founding, the trial judge had little discretion in
imposing a felony sentence. 77 It also noted that, at common law,
"[w]here a statute annexe[d] a higher degree of punishment to a
common-law felony, if committed under particular circumstances,
an indictment for the offence, in order to bring the defendant within
that higher degree of punishment, must [have] expressly charge[d] it
to have been committed under those circumstances, and must 78
[have] state[d] the circumstances with certainty and precision.

70 The Court relied on the fact that

there is a vast difference between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had the right to a jury
trial and the right to require the prosecutor to prove guilt beyond a reasonable
doubt, and allowing the judge to find the required fact under a lesser standard of
proof.
Id. at 496. For a defense of treating recidivism differently based on an estoppel theory, see Note,
Awaiting the Mikado: Limiting Legislative Discretionto Define Criminal Elements and Sentencing
Factors, 112 HARV. L. REV. 1349, 1362-66 (1999).
71 Apprendi, 530 U.S. at 490. The Court in Apprendi considered a New Jersey statutory
scheme that permitted a judge to enhance a defendant's sentence for an underlying offense
based on the judge's finding that the defendant committed the crime with "'a purpose to intimi-
date an individual .. .because of race."' Id. at 468-69 (quoting N.J. STAT. ArNN. § 2C:44-3(e)
(West Supp. 1999-2000)). Under this "hate crime" statute, a judge could increase a sentence
even above the statutory maximum for the underlying conviction because the enhancement was
deemed a sentencing factor, not an offense element. Id. at 491.
72 Id. at 494 n.19.
73 Id. at 495.
74 Id. at 497.
75 Id. at 490.
76 See supra notes 60-68 and accompanying text.
77 Apprendi, 530 U.S. at 479.
78 Id. at 480 (quoting J. ARCHBOLD, PLEADING AND EVIDENCE IN CRIMINAL CASES 51
(15th ed. 1862) (citing M. HALE, 2 PLEAS OF THE CROWN *170)); see also King & Klein, supra
note 56, at 1472-74.
1056 The George Washington Law Review [Vol. 74:1043

From this "historic link between verdict and judgment and the consistent lim-
itation on judges' discretion to operate within the limits of the legal penalties
provided, ' 79 the Court reasoned that a "judge's role in sentencing is con-
strained at its outer limits by the facts alleged in the indictment and found by
the jury." 80
The concurrences of Justices Scalia and Thomas similarly relied on the
jury's historical importance. Justice Scalia's concurrence was written in re-
sponse to Justice Breyer's dissent, which argued that the majority's opinion
did nothing more than promote the "procedural ideal" of juries, because "the
real world of criminal justice cannot hope to meet any such ideal." 81 Justice
Scalia admitted that Justice Breyer "sketche[d] an admirably fair and effi-
cient scheme of criminal justice designed for a society that is prepared to
leave criminal justice to the State. '82 But, he noted, "[tihe founders of the
American Republic were not prepared to leave it to the State, which is why
the jury-trial guarantee was one of the least controversial provisions of the
Bill of Rights. '8 3 In other words, the Framers wanted the people to act as a
check before the state-which, as Justice Scalia noted, includes judges-
could bring its criminal laws down upon a defendant. For his part, Justice
Thomas also canvassed history in reaching his conclusion that the law was
unconstitutional. He concurred to note that, in his view, "a 'crime' includes
every fact that is by law a basis for imposing or increasing punishment (in
contrast with a fact that mitigates punishment)" 84 because he could find "no
historical basis for treating as a nonelement a fact that by law sets or in-
creases punishment." 85
Justice O'Connor noted in her Apprendi dissent that the Court's deci-
sion was a break from the Court's treatment of the jury. She characterized
the decision as a "watershed change in constitutional law" because the Court
had previously given great deference to legislative judgments about how to
allocate sentencing and liability decisions between the judge and jury.86 Jus-
tice O'Connor also "suspect[ed] that the constitutional principle underlying
the Court's decision is more far reaching. '87 She worried in particular that
"[t]he actual principle underlying the Court's decision may be that any fact
(other than a prior conviction) that has the effect, in real terms, of increasing

79 Apprendi, 530 U.S. at 482.

80 Id. at 483 n.10.
81 Id. at 555 (Breyer, J., dissenting).
82 Id. at 498 (Scalia, J., concurring).
83 Id. Justice Scalia thus echoed Justice Gray's dissent in Sparf, in which Justice Gray
noted that the jury's power
is not a question to be decided according to what the court may think would be the
wisest and best system to be established by the people or by the legislature, but
what, in light of previous law, and of contemporaneous or early construction of the
Constitution, the people did affirm and establish by that instrument.
Sparf v. United States, 156 U.S. 51, 169 (1895) (Gray, J., dissenting).
84 Apprendi, 530 U.S. at 501 (Thomas, J., concurring).
85 Id. at 521.
86 Id. at 524 (O'Connor, J., dissenting).
87 Id. at 543.
20061 Originalists,Politics, and Criminal Law 1057

the maximum punishment beyond an otherwise applicable range must be

submitted to a jury and proved beyond a reasonable doubt." 8s
The Apprendi majority later confirmed Justice O'Connor's view of Ap-
prendi's reach. Although Justice Scalia joined without explanation the Ap-
prendi dissenters in Harris v. United States89 to provide a fifth vote for
affirming McMillan's holding that judges could find facts that trigger
mandatory minimum sentences, the Apprendi majority stuck together in sev-
eral other significant sentencing cases. First, the Court in Ring v. Arizona90
overruled Walton v. Arizona91 and held that Apprendi's logic requires that
facts making a defendant eligible for the death penalty be proven to the jury
beyond a reasonable doubt. 92 Ring's analysis effectively declared at least five
states' death penalty schemes unconstitutional, and litigation93continues about
whether it extends more broadly to cover additional states.

88 Id. at 543-44.
89 Harris v. United States, 536 U.S. 545 (2002). For an argument that "[tihere is little logic
to support the coexistence of Harris and Blakely" and that the dissenters in Harris correctly
interpreted the jury's role by finding no distinction between facts that trigger mandatory mini-
mum sentences and those that raise a maximum sentence, see Rachel E. Barkow, The Devil You
Know: Federal Sentencing After Blakely, 16 FED. SENT'c REP. 312, 312 (2004); Barkow, supra
note 19, at 102-05. As Kevin Reitz has observed, the Court's decision in Harris means that
"[t]he jury's role as 'circuitbreaker' lacks constitutional significance in the context of mandatory
minimum sentence enhancements." Kevin R. Reitz, The New Sentencing Conundrum: Policy
and ConstitutionalLaw at Cross-Purposes,105 COLUM. L. REV. 1082, 1097 (2005). It is difficult
to understand Justice Scalia's switch in Harris, and it does not seem supported by any claim to
originalism. This appears to be an instance where the attitudinalists would be correct to note the
failure of legal methodology to explain the outcome and where political preference or ideology
seems to be driving the decision.
90 Ring v. Arizona, 536 U.S. 584 (2002).
91 Walton v. Arizona, 497 U.S. 639 (1990) (allowing a judge to make the necessary findings
to trigger a capital sentence), overruled by Ring v. Arizona, 536 U.S. 584 (2002).
92 Ring, 536 U.S. at 609. The five Justices who comprised the majority in Apprendi
reached this result based on their agreement with the analysis in Apprendi of the jury's impor-
tance and their finding that capital cases were indistinguishable for purposes of the Apprendi
analysis. Id. at 589 ("Capital defendants, no less than noncapital defendants, we conclude, are
entitled to a jury determination of any fact on which the legislature conditions an increase in
their maximum punishment."). Justice Kennedy joined the five Justices from the Apprendi ma-
jority, noting that "[t]hough it is still my view that [Apprendi] was wrongly decided, Apprendi is
now the law, and its holding must be implemented in a principled way." Id. at 613 (Kennedy, J.,
concurring). Justice Breyer did not believe Apprendi required the result in Ring, but he reached
the same outcome based on his analysis under the Eighth Amendment. Id. at 613-19 (Breyer, J.,
concurring in the judgment). Chief Justice Rehnquist and Justice O'Connor dissented. Id. at
619-21 (O'Connor, J., dissenting). It is hard to square Justice Kennedy's and Justice Breyer's
votes in Apprendi with their votes in Ring. Justice Kennedy has ignored Apprendi in many
subsequent cases, including Harris,Blakely, and Booker, so it is hard to find evidence that he is
committed to implementing Apprendi "in a principled way." Similarly, it is difficult to under-
stand Justice Breyer's Eighth Amendment argument as anything other than selective acceptance
of Apprendi in the context of a death penalty case. See id. at 613 (Scalia, J., concurring) ("There
is really no way in which Justice Breyer can travel with the happy band that reaches today's
result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he
should either get off before the doors close, or buy a ticket to Apprendi-land."). Thus, like
Justice Scalia's vote in Harris,see supra note 89, their decisions seem better explained by politi-
cal preference or ideology than the strength of legal argument.
93 Barkow, supra note 19, at 41 n.28 (discussing Ring's application to Arizona, Colorado,
Idaho, Montana, and Nebraska); see also Kimberly J. Winbush, Annotation, Application of Ap-
1058 The George Washington Law Review [Vol. 74:1043

Following Apprendi, the Court issued the blockbuster decisions of

Blakely v. Washington94 and United States v. Booker,95 which held that sen-
tencing guidelines that require increases in a defendant's sentence on the ba-
sis of judicial fact-finding also violate the jury guarantee. In Blakely, the
Court rejected the State of Washington's argument that a sentencing guide-
lines enhancement was acceptable because it was within the ten-year maxi-
mum for the offense to which Blakely pleaded guilty. 96 The Court clarified
that "the 'statutory maximum' for Apprendi purposes is the maximum sen-
tence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.' 97 The same five-Justice majority from
Jones and Apprendi once again relied on the historical and structural impor-
tance of the jury. Writing for the Court, Justice Scalia noted that
[t]he jury could not function as a circuitbreaker in the State's ma-
chinery of justice if it were relegated to making a determination that
the defendant at some point did something wrong, a mere prelimi-
nary to a judicial inquisition into the facts of the crime the State
98
actually seeks to punish.
He noted that the decision in Blakely therefore "reflects not just respect for
longstanding precedent, but the need to give intelligible content to the right
of jury trial. That right is no mere procedural formality, but a fundamental
reservation of powers in our constitutional structure." 99 Although the Court
again cautioned that it was not passing judgment on the constitutionality of
the Federal Sentencing Guidelines, 1°° the dissent warned that the Court's
opinion "casts constitutional doubt" over all sentencing guideline regimes,
including the federal one.101
In Booker, the Court removed whatever doubt remained and concluded
that the logic of Blakely applied to the Federal Sentencing Guidelines."'2
The Court issued two opinions with two different majorities, one on the sub-
stantive question of whether Blakely applied to the Federal Sentencing 10 4
Guidelines' 0 3 and another on the remedial question of what to do about it.
Justice Stevens wrote the substantive opinion for the same five Justices in the
Apprendi majority and reiterated the importance of the jury to the constitu-
tional order. The opinion reaffirmed the viability of Williams and discretion-
ary judicial sentencing.10 5 But it explained that the growth in mandatory
sentencing laws like the Guidelines posed a greater threat to the jury's role:

prendi v. New Jersey and Ring v. Arizona to State Death Penalty Proceedings, 110 A.L.R. 5TH 1
(2003) (collecting cases applying Apprendi and Ring to state capital murder proceedings).
94 Blakely v. Washington, 542 U.S. 296 (2004).
95 United States v. Booker, 543 U.S. 220 (2005).
96 Blakely, 542 U.S. at 303.
97 Id.
98 Id. at 306-07.
99 Id. at 305-06.
100 Id. at 305 n.9.
101 Id. at 323 (O'Connor, J., dissenting).
102 United States v. Booker, 543 U.S. 220, 226-27 (2005).
103 Id. at 226-44 (Stevens, J., delivering opinion of the Court in part).
104 Id. at 244-68 (Breyer, J., delivering opinion of the Court in part).
105 Id. at 233 (Stevens, J., delivering opinion of the Court in part) ("We have never doubted
2006] Originalists,Politics, and Criminal Law 1059

"The effect of the increasing emphasis on facts that enhanced sentencing

ranges, however, was to increase the judge's power and diminish that of the
jury.... As the enhancements became greater, the jury's finding of the un-
derlying crime became less significant.' 10 6 Thus, the Court explained, "[t]he
new sentencing practice forced the Court to address the question how the
right of jury trial could be preserved, in a meaningful way guaranteeing that
the jury would still stand between the individual and the power of the gov-
ernment under the new sentencing regime.' 0 7 And the answer, according to
the Court, required the holdings announced in Apprendi and Blakely and
application of the Blakely holding to the Federal Sentencing Guidelines,
thereby preventing judges from increasing a defendant's maximum sentence
under the Guidelines based on facts that the jury did not find (or the defen-
dant did not admit). 0 8 When it came to deciding on a remedy, however,
Justice Ginsburg broke ranks with the Apprendi majority and joined the Ap-
prendi dissenters in concluding that the Guidelines were facially invalid and
the proper course was to excise those portions of the Sentencing Reform Act
that made the Guidelines mandatory. ° 9
It is hard to overstate the significance of Blakely and Booker on state
and federal sentencing practices. Blakely and Booker have changed dramati-
cally the landscape of sentencing law because they affect all jurisdictions with
structured sentencing, either in the form of statutes or guidelines.'"10 Blakely

the authority of a judge to exercise broad discretion in imposing a sentence within a statutory
range.").
106 Id. at 236.
107 Id. at 237.
108 Id. at 243-44.
109 Id. at 245 (Breyer, J., delivering opinion of the Court in part). The remedial majority
explained that "district courts, while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing" and that "courts of appeals review
sentencing decisions for unreasonableness." Id. at 264. Justices Stevens, Scalia, Souter, and
Thomas disagreed that this remedy comported with the congressional intent in passing the Sen-
tencing Reform Act. Id. at 274 (Stevens, J., dissenting in part) ("[Tlhe Court's creative remedy
is an exercise of legislative, rather than judicial, power."); id. at 313 (Thomas, J., dissenting in
part) (agreeing with Justice Stevens's proposed remedy but writing separately to state his view of
severability). These Justices would not have found the Guidelines facially invalid but invalid
only as applied to those cases without jury findings; thus, the Guidelines could still operate in a
mandatory fashion, according to the remedial dissenters, as long as the requisite jury findings
were made. Id. at 274-84 (Stevens, J., dissenting in part); see also id. at 302 ("Neither Apprendi,
nor Blakely, . . . made determinate sentencing unconstitutional. Merely requiring all applica-
tions of the Guidelines to comply with the Sixth Amendment ...would have required no more
complicated procedures than the procedural regime the majority enacts today, and, ultimately,
would have left most sentences intact.").
110 While Apprendi was itself a significant decision that prompted a flood of litigation, it
ultimately led to only small changes in doctrine because the courts interpreted the decision nar-
rowly. Douglas A. Berman, Examining the Blakely Earthquake and Its Aftershocks, 16 FED.
SENT'G REP. 307, 308 (2004) ("Though the decision generated much litigation and many appel-
late decisions trying to interpret and give effect to the Apprendi ruling, its impact on established
criminal law doctrines was relatively limited because lower federal and state courts typically
interpreted Apprendi narrowly, and legislatures did not feel compelled to alter existing sentenc-
ing systems."). In those jurisdictions where courts read Apprendi more expansively and essen-
tially predicted the outcome in Blakely, it did lead to significant changes. For example, after
Apprendi, Kansas adopted a bifurcated system in which juries decide facts that increase a defen-
1060 The George Washington Law Review [Vol. 74:1043

prompted multiple states to amend their sentencing guidelines,'11 and many

other state sentencing guidelines and statutes might be affected by the deci-
sion. 112 The decision has also altered the plans of other states to adopt sen-
tencing guidelines. 113 Indeed, because Blakely potentially impacts the
sentencing jurisprudence and policies of every state, Doug Berman believes it
"may be the most consequential and important criminal justice decision, not
only of [the 2003] Term or [the last] decade or even of the Rehnquist Court,
but perhaps in the history of the U.S. Supreme Court. ' 114 As Kevin Reitz
observes,
Blakely has been likened to a legal earthquake, a forty-car pileup, a
bombshell, and a bull in a china shop. It has been called the most
significant constitutional decision in criminal justice since Mi-
randa-andsome have opined that its full force will be greater than
115
any past ruling in the field.
For its part, Booker altered the world of federal sentencing by trans-
forming the most stringent guidelines in the country into an advisory system
subject to judicial review, leaving a host of questions in its wake. There are
already multiple circuit splits and unanswered questions about Booker's 1 16
scope and the shape of the new advisory Federal Sentencing Guidelines.
The Department of Justice is contemplating solutions to address what it sees
as the problem of too much judicial discretion, and Congress, too, is consider-
ing legislative proposals, including a House bill that would transform the Fed-
17
eral Sentencing Guidelines into mandatory minimum sentences.'
Contrast this new sentencing world-with almost daily judicial decisions
about how federal or state sentencing systems must operate and multiple leg-
islative proposals in states and the federal system designed to comply with
the jury guarantee-with the sentencing system that operated for most of the

dant's sentence. Reitz, supra note 89, at 1109-13 (describing the Kansas system); see also
Blakely v. Washington, 542 U.S. 296, 309-10 (2004) (same).
111 See, e.g., ALASKA STAT. § 12.55.155(f) (2004) (amended 2006); 2005 N.C. Sess. Laws
253; 2005 Wash. Sess. Laws 202.
112 For a preliminary analysis of how Blakely affects state sentencing systems, see Jon Wool
& Don Stemen, Aggravated Sentencing: Blakely v. Washington-Practical Implicationsfor State
Sentencing Systems, POL'Y & PRAC. REV., Aug. 2004, at 1, 3-6 (positing that thirteen states are
"fundamentally affected" by Blakely and that another eight might possibly be affected).
113 For example, Kevin Reitz notes that Blakely might be responsible for the decision of the
Massachusetts legislature to curtail its plans to adopt sentencing guidelines. Reitz, supra note 89,
at 1107. And, as he observes, "[i]n unknown numbers of other states, Blakely may similarly
squelch or sidetrack movements toward sentencing reform." Id. at 1108.
114 Douglas A. Berman, The Roots and Realities of Blakely, CRIM. JUST., Winter 2005, at 4,
5.
115 Reitz, supra note 89, at 1086.
116 For an excellent catalog of all post-Blakely and post-Booker developments, see Douglas
A. Berman, Sentencing Law and Policy, http://sentencing.typepad.com (last visited June 11,
2006).
117 See Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child
Protection Act of 2005, H.R. 1528, 109th Cong. § 12 (2005). The post-Blakely and post-Booker
legal developments are so voluminous that Doug Berman's informative blog on sentencing law
and policy developments posts a new significant decision or legislative proposal on an almost
daily basis. See Berman, supra note 116.
2006] Originalists,Politics, and Criminal Law 1061

Nation's history, and it is easy to see why these decisions must be considered
a vital part of the Rehnquist Court's legacy. Whether or not the Court has
struck the right balance," 8 it has significantly transformed the conversation
over sentencing. Just as it was in the Nation's early history, the jury is once
again at the center of the conversation. And with hundreds, perhaps
thousands, of court decisions reviewing sentences for compliance with
Blakely and Booker, sentencing is anything but lawless. We are in the midst
of a sentencing revolution, and it has been sparked by the Court's reinvigora-
tion of the jury's place in the constitutional structure. These decisions there-
fore must rank alongside the Supreme Court's other significant criminal
procedure reforms, and they must be part of any discussion of the Rehnquist
Court's treatment of criminal law.
The day-to-day aftershocks of the Court's Sixth Amendment cases
would alone merit making them a critical part of the Rehnquist Court's leg-
acy, but they are significant for another reason: the coalition that produced
them. The key jury decisions that sparked the changes in sentencing law
were the product of a five-Justice majority, with the same four Justices re-
peatedly objecting in dissent. That, of course, is not noteworthy, as the
Rehnquist Court issued many 5-4 decisions. But the most common 5-4 pat-
terns in the Court did not resemble the coalitions in the Sixth Amendment
context. In the typical 5-4 case, Chief Justice Rehnquist, Justice Scalia, and
Justice Thomas were on one side, with Justices Stevens, Souter, Ginsburg,
and Breyer on the other; Justices O'Connor and Kennedy were the swing
votes that joined one of these two groups and determined the outcome. In
the jury cases, however, the 5-4 lineup took on a new look. Justices Scalia
and Thomas-commonly referred to as the Court's most conservative Jus-
tices' 19-joined with Justices Stevens, Souter, and Ginsburg-members of
the Court's liberal wing.
The votes in these cases that would most likely defy the predictions of
the attitudinal models would therefore be those of Justices Scalia, Thomas,
and perhaps Breyer. 120 It is not clear that the model would not anticipate
Justice Breyer's votes in this line of cases because he tends to be more defer-
ential to government decision making than the Court's other liberal jurists,
and he is closer to the center in the spatial model. 121 To the extent his vote

118 Although most of the Court's cases in this line are well-justified under the jury's role in
the constitutional structure, the Court's decision in Harris cannot be defended as a matter of
constitutional history or theory and creates perverse incentives that threaten to undermine the
very jury protections the Court claims to be protecting. See Barkow, supra note 19, at 102-06;
Barkow, supra note 89, at 312-15.
119 See, e.g., supra note 10.
120 This is not to say that the attitudinal model does not have merit in these cases or that
the Justices have been consistently faithful to their stated legal principles in this line of cases. As
noted above, the vote of Justice Scalia in Harrisand the votes of Justices Kennedy and Breyer in
Ring rest on thin legal justifications and are inconsistent with their other votes in this line of
cases. See supra notes 89, 92. Justice Ginsburg's acceptance of the remedy in Booker is another
example of something other than the principled application of legal methodology driving her
vote. The argument is therefore not that the attitudinal model lacks force; rather it is that it is
incomplete in at least a subset of cases.
121 See supra note 10.
1062 The George Washington Law Review [Vol. 74:1043

does require further explanation, Justice Breyer's more conservative position

seems to have been driven in large part by the fact that he was one of the first
members of the United States Sentencing Commission and a strong advocate
for the kind of sentencing laws at issue in this line of cases. In addition, the
jury's lack of expertise and training and the unpredictability of their verdicts
122
run counter to his preference for expert decision making.
The pro-defendant stance of Justices Scalia and Thomas presents the
greatest challenge for an attitudinal model. Their votes seem most readily
explained by the interpretive methodology they endorse, which is original-
ism. 123 As Justice Scalia has described it, originalism strives to adhere to the
meaning of the Constitution at the time it was adopted. 124 And the opinions
in this line of cases-from Jones to Apprendi to Blakely and Booker-were
based on the strong conception of the criminal jury that existed at the found-
ing. The opinions are replete with historical references to the jury and its
traditional importance, which signified a departure from the Supreme
Court's modern approach to the jury. Their stated commitment to original-
ism therefore prompted Justices Scalia and Thomas-the Justices frequently
labeled the two most conservative members of the Court-to accept an out-
come that is inconsistent with conservative politics on crime. 125 They did so
knowing that their decisions would benefit not only the defendants before
them, but potentially thousands upon thousands of others; 126 they also did so

122 Cf Richard H. Pildes, Democracy and Disorder,68 U. CHI. L. REV. 695, 715-16 (2001)
(noting Justice Breyer's preference for "the authoritative role of expertise in policymaking" and
pointing out that this preference might lead to his desire for order and stability in democracy
cases).
123 As Stephanos Bibas points out, their votes in these cases are also consistent with a
methodology that favors formalist rules over more flexible standards. Bibas, supra note 13, at
200-04. While Bibas is correct, formalism does little to explain the substantive content of Justice
Scalia's and Justice Thomas's votes. That is, while formalism helps explain the form of the
Court's test for constitutionality, the fact that the Justices came out in favor of criminal defend-
ants in those cases is based on the Justices' perceptions of the original meaning of the
Constitution.
124 Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 851-52 (1989).
Other originalists believe that it requires adherence to the intent of the Framers. Paul Brest, The
Misconceived Quest for Original Understanding,60 B.U. L. REV. 234, 234 (1980).
125 See Richard H. Fallon, Jr., The "Conservative" Pathsof the Rehnquist Court's Federalism
Decisions, 69 U. CHI. L. REV. 429, 447 (2002) (characterizing a vote against a criminally accused
as a conservative outcome); Erwin Chemerinsky, The Rehnquist Court & Justice: An Oxymo-
ron?, 1 WASH. U. J.L. & POL'Y 37, 37, 49 (1999) (characterizing the Rehnquist Court as activist
and conservative and citing as an example the fact that "criminal defendants virtually always lose
and especially so in capital cases"); see also supra note 9.
126 There is already empirical evidence that Apprendi has resulted in shorter sentences for
defendants. See J.J. Prescott, Measuring the Consequences of CriminalJury Trial Protections,
http://econ-www.mit.edu/graduate/candidates/download-rip.php?id=114 (last visited June 11,
2006). Similarly, although the United States Sentencing Commission reports that most sentences
have remained compliant with the Federal Sentencing Guidelines after Booker and there has
been a slight increase in the number of above-the-Guidelines sentences after Booker, there are
now more below-the-Guidelines sentences than prior to Booker. U.S. SENTENCING COMM'N,
FINAL REPORT ON THE IMPACT OF UNITED STATES V. BOOKER ON FEDERAL SENTENCING 57-58,
77 (2006), http://www.ussc.gov/booker-report/BookerReport.pdf (finding that 85.9% of cases
are within the Guidelines, 1.6% are above the Guidelines-double the pre-Booker number-
and 12.5% are below the Guidelines, up from 8.6% pre-Booker).
2006] Originalists,Politics, and Criminal Law 1063

knowing that the decisions in these sentencing cases would have a profound
impact on the operation of criminal laws throughout the country and would
force state legislatures and Congress to rethink their approaches to sentenc-
ing, placing these cases among the most significant criminal procedure cases
ever decided. Finally, Justices Scalia and Thomas voted for defendants in
these cases because they believed their legal methodology required it even
though their votes were in tension with or contradicted positions they had
previously endorsed, 127 the strongest evidence that they were not voting
based on personal preference but on their view 12of8 what the law-and their
stated legal methodology-required them to do.
The jury cases therefore showcase an important split among the Court's
conservative Justices. Chief Justice Rehnquist and Justices O'Connor and
Kennedy, all of whom follow a more pragmatic approach that weighs many
factors including the burden a particular decision would place on the efficient
operation of government, sided with the government. Those conservative
Justices who claim adherence to an originalist methodology ruled in favor of
the defendants.
While an enormous amount of scholarship has focused on the conserva-
tive/liberal divide on the Court, less attention has been paid to the fissure
among the Court's conservatives based on legal methodology. Yet it was pre-
cisely this division that produced the Rehnquist Court's most significant
criminal procedure cases, measured in terms of the impact those cases have
had on protecting the interests of criminal defendants and how they changed
the existing criminal justice system. The Court's conservative originalists
were to the left of the Court's conservative pragmatists in these important
cases. The results in these cases challenge a purely political accounting of the
Court and highlight the need for paying closer attention to the complicated
relationship between originalism, politics, and criminal law. While the con-
ventional wisdom views the Court's conservative pragmatists as less ideologi-
cal than the originalists and would therefore predict that the conservative
pragmatists would be more favorable to criminal defendants than the Court's

127 See Ring v. Arizona, 536 U.S. 584, 610-12 (2002) (Scalia, J., concurring) (noting that the
case forces him to confront "a difficult choice" because he was "reluctant to magnify the bur-
dens" the Court's death penalty jurisprudence places on the states but ultimately concluding that
juries need to find aggravating facts in capital cases because "[w]e cannot preserve our venera-
tion for the protection of the jury in criminal cases if we render ourselves callous to the need for
that protection by regularly imposing the death penalty without it"); Apprendi v. New Jersey,
530 U.S. 466, 520-21 (2000) (Thomas, J., concurring) (noting that he was in error in his approach
in Almendarez-Torres). Moreover, the positions of Justices Scalia and Thomas in the death pen-
alty cases shows that their votes are motivated by something other than a concern that the jury
stand between the innocent and the state; in the capital context, the defendant is already con-
victed of murder and the only issue is whether the death penalty should apply. Justices Scalia
and Thomas are consistently opposed to procedural protections in death penalty cases, see infra
Part II, so their votes in Ring can be explained only by their stated commitment to originalism
and what it demands in all proceedings, including capital matters.
128 Thus, it is not merely that law and legal methodology have an influence, but that they
act as constraints on judicial behavior. See Friedman, supra note 7, at 330 ("[I1t is extremely
important to emphasize that positive theory need not-and typically does not-deny the influ-
ence of law; it only raises questions about how much law serves to constrain judges in the strict
sense demanded by some normative theory.").
1064 The George Washington Law Review [Vol. 74:1043

conservative originalists, the jury cases defy that logic. And, as Part II ex-
plains, these cases are part of a larger pattern.

IL Originalism,Politics, and Criminal Law

The jury cases provide an important illustration of the significance of the
methodological divide among the Court's conservative jurists. In what were
arguably the most important criminal procedure cases from the Rehnquist
Court, the Court's conservative originalists voted to the left of the Court's
conservative pragmatists.
By reviewing the Justices' votes in all of the Rehnquist Court's criminal
cases during the ten-year period from the October Term 1994 to the October
Term 2003, it is possible to determine whether these cases were notable outli-
ers or part of a larger trend.t 29 Justice Breyer joined the Court for the 1994
Term, so there were no changes in the Court's membership during this time,
making it possible to compare the same nine Justices with one another across
the entire time frame. Because the key issue under scrutiny is how the
Court's conservative originalists compare with the Court's conservative
pragmatists, the data set includes only those cases in which at least one of the
Court's conservatives voted for the 130
defendant and at least one of the conserv-
atives voted for the government.
During that time span, the conservatives split their votes fifty-five times
in noncapital cases and fourteen times in capital cases. In the capital cases,
the conventional wisdom that the conservative pragmatists would be friend-
lier to defendants than the conservative originalists proved correct. In those
fourteen cases, Justice O'Connor voted for the defendant on eleven occa-
sions, Justice Kennedy ruled for the defendant seven times, Chief Justice
Rehnquist came out in favor of the defendant twice, and Justices Scalia and
Thomas each sided with the defendant only once. Because the death penalty
existed at the time of the Constitution's framing and the Constitution makes
explicit reference to it, the originalists reject arguments based on evolving
standards of decency and are not persuaded by claims that capital proceed-
ings merit extra procedural protections. Thus, for capital defendants, an
originalist approach is certainly worse than a pragmatic one.
But while an originalist approach to the death penalty is relevant to any
assessment of the theory's relationship to criminal law, it is also important to
consider separately the consequences of an originalist approach in noncapital

129 The cases studied include all argued criminal cases, but not per curiam cases or cases
dismissed as improvidently granted. Also omitted were civil forfeiture cases and civil cases
under 42 U.S.C. § 1983 and § 1988 that involved questions other than the scope of a constitu-
tional right, such as jurisdictional questions or whether a right was clearly established enough to
put an official on notice. Fourth Amendment cases outside the criminal context-such as
mandatory drug testing for students or candidates running for office-were also omitted. Crimi-
nal cases involving questions of the government's power to act-such as First Amendment or
Commerce Clause challenges or jurisdictional questions-were also omitted from the pool of
cases considered.
130 Unanimous cases and nonunanimous cases in which all five conservatives reached the
same decision were therefore omitted from the data set. Concurring opinions were coded based
on whether they came out in favor of the defendant or the government.
2006] Originalists,Politics, and Criminal Law 1065

cases. Death penalty cases remain a tiny minority of criminal cases, even
though they occupy a disproportionate segment of the Court's criminal
docket. For the overwhelming majority of criminal defendants, the Court's
capital cases are irrelevant. 1 3' Indeed, the Court itself has recognized that
1 32
"death is different. 1
When the noncapital cases are considered separately, the pattern is dif-
ferent. In those fifty-five cases, Justices O'Connor, Scalia, and Kennedy
ruled for defendants most often, with twenty-four cases each. Justice Thomas
followed with eighteen votes for defendants, and Chief Justice Rehnquist
ruled for defendants fourteen times. In cases raising constitutional ques-
tions, 13 3 as opposed to questions of statutory interpretation or the standard of
review, Chief Justice Rehnquist was the outlier, with Justice O'Connor ruling
for defendants fourteen times, Justice Kennedy ruling for them in thirteen
cases, Justices Scalia and Thomas in eleven cases, and Chief Justice Rehn-
quist in only five cases. 134 These numbers show that the jury cases are not
outliers but part of a larger group of cases in which one or both of the
originalists sided with defendants even when one or more of the Court's
other conservatives did not.
But the absolute numbers cannot tell the entire story because cases in-
volve issues of varying importance. If the Court's conservative pragmatists
came out in favor of defendants in the most important cases, the fact that
originalists sided with defendants in smaller matters would lose significance,

131 Since the Supreme Court invalidated the death penalty in Furman v. Georgia, 408 U.S.
238 (1972), the number of executions has remained minute compared to the overall number of
criminal cases. For example, death sentences reached their peak in 1996, when 320 executions
were carried out. James S. Liebman & Lawrence C. Marshall, Less Is Better: Justice Stevens and
the Narrowed Death Penalty, 74 FORDHAM L. REV. 1607, 1659 (2006). In that same year, there
were 997,970 felony convictions in state court alone. BUREAU OF JUSTICE STATISTICS, U.S.
DEP'T OF JUSTICE, STATE COURT SENTENCING OF CONVICTED FELONS 2 tbl.1.1 (1996), http://
www.ojp.usdoj.govlbjs/pub/pdf/scsc9601.pdf. Indeed, even if one looks only at murder cases,
there were 8564 state murder convictions in 1996. Id. And the number of capital sentences
imposed has only decreased, reaching a post-Furman low of ninety-six in 2005. Liebman & Mar-
shall, supra, at 1660. In contrast, the number of people incarcerated and serving sentences other
than death has exploded, with more than two million people currently incarcerated.
132 Rummel v. Estelle, 445 U.S. 263, 272 (1980) (highlighting the "unique nature of the
death penalty"); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion)
("[T]he penalty of death is qualitatively different from a sentence of imprisonment, however
long."); Atkins v. Virginia, 536 U.S. 304, 337 (2002) (Scalia, J.,dissenting) (referring to the
Court's "death-is-different jurisprudence").
133 If a Justice interpreted a statute a particular way to avoid constitutional doubt, it was
included in this category. Sell v. United States, 539 U.S. 166 (2003), was omitted from the pool of
cases because, although Justices Scalia, O'Connor, and Thomas dissented from the majority's
decision that upheld the government's administration of psychotropic drugs to render a mentally
ill defendant competent to stand trial, they did so on jurisdictional grounds, not on the merits.
Sell, 539 U.S. at 187 (Scalia, J., dissenting).
134 In statutory interpretation cases not raising questions of constitutional doubt, Justice
Scalia ruled for defendants most often, in eleven cases, followed by Justice Kennedy in eight
cases, Chief Justice Rehnquist in seven cases, and Justices O'Connor and Thomas in six cases
each. The remaining cases in which the conservative Justices disagreed involved questions of the
standard of review, either on direct appeal or on habeas. In those cases, Justice O'Connor ruled
for the defendant four times, Justice Kennedy three times, Chief Justice Rehnquist twice, and
Justices Scalia and Thomas once.
1066 The George Washington Law Review [Vol. 74:1043

and vice versa. It is therefore important to look at the kinds of cases in which
the conservatives split their votes.

A. Conservative Divisions in Criminal Cases

As already noted, in the most important category of cases in which the

conservatives disagreed, the jury sentencing cases, both originalists sided with
135
the defendants while all of the pragmatists sided with the government.
Another category of cases in which both originalists have taken a strong
stance in favor of defendants involves state attempts to apply criminal laws
retroactively. In Carmell v. Texas, 136 Justices Scalia and Thomas formed a
majority with Justices Stevens, Souter, and Breyer and concluded that a law
that reduces the quantum of evidence required for a conviction cannot be
applied to offenses before the law's enactment because it would violate the
Ex Post Facto Clause.137 Similarly, in Rogers v. Tennessee,'138 Justices Scalia
and Thomas, along with Justice Stevens and Justice Breyer, dissented from a
decision that upheld the retroactive application of a judicial decision to abro-
gate the year-and-a-day rule, under which a defendant could not be convicted
of murder unless the victim died within a year and a day of the defendant's
act.139 They reasoned that due process concerns with ex post facto applica-
40
tion of the law applied to judicial decisions no less than legislative ones.'
The Court's originalists were on the side of greater protection for indi-
vidual liberty against the government in the Court's 5-4 decision in Kyllo v.
United States.' 4' Kyllo involved the question of whether the government's
use of a thermal imaging device aimed at a private home to detect relative
amounts of heat counts as a search for purposes of the Fourth Amend-
ment' 42 Justice Scalia, in an opinion joined by Justices Souter, Thomas,
Ginsburg, and Breyer, concluded "that obtaining by sense-enhancing tech-
nology any information regarding the interior of the home that could not
have otherwise been obtained without physical 'intrusion into a constitution-
ally protected area' constitutes a search-at least where (as here) the tech-

135 In Richardson v. United States, 526 U.S. 813 (1999), Justices Scalia and Thomas, along
with Chief Justice Rehnquist and Justices Breyer, Stevens, and Souter, concluded that under 21
U.S.C. § 848, the jury must unanimously agree about the specific violations that make up the
"continuing series of violations," Richardson, 526 U.S. at 815, and reached this interpretation in
part to avoid a constitutional question, id. at 820.
136 Carmell v. Texas, 529 U.S. 513 (2000).
137 Id. at 532-34.
138 Rogers v. Tennessee, 532 U.S. 451 (2001).
139 See id. at 462. In one other Ex Post Facto Clause case from the same period, Justice
O'Connor was the only conservative to join Justices Breyer, Stevens, Souter, and Ginsburg in
finding that a new law that resurrects an otherwise time-barred criminal prosecution and that
was itself enacted after the pre-existing limitations period had expired violated the Ex Post Facto
Clause. See Stogner v. California, 539 U.S. 607 (2003).
140 Rogers, 532 U.S. at 468 (Scalia, J., dissenting) ("Today's opinion produces.., a curious
constitution that only a judge could love. One in which (by virtue of the Ex Post Facto Clause)
the elected representatives of all the people cannot retroactively make murder what was not
murder when the act was committed; but in which unelected judges can do precisely that.").
141 Kyllo v. United States, 533 U.S. 27 (2001).
142 Id. at 29.
2006] Originalists,Politics, and Criminal Law 1067

nology in question is not in general public use."'1 43 The majority reasoned

that this rule was necessary to "assure[ ] preservation of that degree of pri-
vacy against government that existed when the Fourth Amendment was
adopted." 144
In other areas, the originalists split their votes, with only one of them
coming out in favor of defendants. For example, Justice Scalia has been a
particularly strong adherent to the rule of lenity, the common-law tradition
that requires interpreting statutes in favor of defendants. He has repeatedly 145
sided with defendants on this basis in cases involving a variety of crimes.
In fact, according to a recent study by Ward Farnsworth, Justice Scalia is
"[tihe only justice to use the rule of lenity often and distinctively,"
"appl[ying] it in ten of the last eleven cases where it was made an issue. 1 46
Justice Scalia has also been a particularly strong adherent to the jury's consti-
14 7
tutional role, even outside the sentencing cases. In Neder v. United States,'
Justice Scalia dissented, along with Justices Souter and Ginsburg, from a ma-
jority opinion that held that a jury instruction that omits an element of an
offense should be held to harmless error analysis. 48 In contrast, all of
Court's pragmatists, along with Justice Thomas, found that the balancing ap-
proach of harmless error was preferable, thus allowing convictions to stand
even in the face of flawed instructions on the law. 149 As noted above, Justices
Scalia and Thomas did not agree in all of the jury cases involving sentencing.
Justice Scalia voted with the government in Harris v. United States,150 a case
in which Justice Thomas joined the other members of the Apprendi majority

143 Id. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
144 Id. Justice Thomas, along with the Court's conservative pragmatists, also joined the
majority opinion in Bond v. United States, 529 U.S. 334 (2000), which held that a law enforce-
ment officer's warrantless physical manipulation of the carry-on luggage of a bus passenger vio-
lated the Fourth Amendment. Justice Scalia, along with Justice Breyer, dissented. Bond, 529
U.S. at 339 (Breyer, J., dissenting). For an argument that the Rehnquist Court's use of original-
ism in interpreting the Fourth Amendment "has little to recommend it," see David. A. Sklansky,
The Fourth Amendment and Common Law, 100 COLUM. L. REV. 1739, 1744 (2000).
145 See, e.g., United States v. Rodriguez-Moreno, 526 U.S. 275, 285 (1999) (Scalia, J., dis-
senting, joined by Stevens, J.)(characterizing the majority's broad definition of the proper venue
for criminal trials as "depart[ing] further from the meaning of language than is appropriate");
Muscarello v. United States, 524 U.S. 125, 148 (1998) (Ginsburg, J., dissenting, joined by Rehn-
quist, C.J., and Scalia & Souter, JJ.) ("Where there is ambiguity in a criminal statute, doubts are
resolved in favor of the defendant."); Ratzlaf v. United States, 510 U.S. 135, 148 (1994) (Gins-
burg, J., writing for the Court, joined by Stevens, Scalia, Kennedy, & Souter, JJ.) (concluding
that where statutes are ambiguous, the Court "resolve[s] any doubt in favor of the defendant");
Smith v. United States, 508 U.S. 223, 246 (1993) (Scalia, J., dissenting, joined by Stevens &
Souter, JJ.) (finding statute clear in favor of defendant but noting that it is at least ambiguous
and subject to the rule of lenity); Moskal v. United States, 498 U.S. 103, 131-32 (1990) (Scalia, J.,
dissenting, joined by O'Connor & Kennedy, JJ.) (briefly sketching the history and meaning of
the rule of lenity); Schmuck v. United States, 489 U.S. 705, 722-23 (1989) (Scalia, J., dissenting,
joined by Brennan, Marshall & O'Connor, JJ.) (construing mail fraud statute narrowly, in favor
of the defendant).
146 Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal
Docket, 104 MICH. L. REV. 67, 72-73 (2005).
147 Neder v. United States, 527 U.S. 1 (1999).
148 Id. at 30 (Scalia, J., dissenting in relevant part).
149 Id. at 4 (majority opinion).
150 Harris v. United States, 536 U.S. 545, 549 (2002).
1068 The George Washington Law Review [Vol. 74:1043

in dissent because they would have overruled McMillan and required jurors
to find the facts that trigger mandatory minimum sentences.' 51 Justice
Thomas also joined with the Court's liberal justices in United States v.
Bajakajian152 in finding a forfeiture to be excessive under the Eighth
Amendment.
In addition, there are two areas where the originalists have indicated
that, in future cases, they might be more likely to rule for criminal defendants
than their conservative peers. Justices Scalia and Thomas have indicated that
they will interpret the Fifth Amendment privilege against self-incrimination
expansively. In United States v. Hubbell,153 in which only Chief Justice Rehn-
quist dissented from a decision holding that the target of a grand jury investi-
gation cannot be compelled to answer questions that are designed to elicit
information about the existence of sources of incriminating evidence, Justices
Scalia and Thomas concurred to note that they would go even further than
the rest of the majority. 1 54 They noted that "[a] substantial body of evidence
suggests that the Fifth Amendment privilege protects against the compelled
production not just of incriminating testimony, but of any incriminating evi-
dence" and stated that, "[i]n a future case," they "would be willing
'1 55
to recon-
sider the scope and meaning of the Self-Incrimination Clause.'
Justices Scalia and Thomas have also been protective of defendants
under the Confrontation Clause. They were recently part of a coalition of
seven Justices in Crawford v. Washington1 56 that rejected the Ohio v. Rob-
erts157 balancing test for admitting testimonial statements and replaced it with
a categorical bar. Courts applying the Roberts test frequently admitted state-
ments made by nontestifying witnesses during police interrogations, grand
jury proceedings, and allocutions. 158 In an opinion authored by Justice
Scalia, the Court in Crawford traced the historical background of the Con-
frontation Clause 159 and then concluded that "[w]here testimonial statements
are involved, we do not think the Framers meant to leave the Sixth Amend-

151 Justice Thomas voted with the government in Almendarez-Torres, though he later noted
that he made a mistake in that case. See Apprendi v. New Jersey, 530 U.S. 466, 520-21 (2000)
(Thomas, J., concurring); see also Shepard v. United States, 544 U.S. 13, 27-28 (2005) (Thomas,
J., concurring in part and concurring in the judgment) (noting that a majority of the Court be-
lieves Almendarez-Torres was wrongly decided and stating that "in an appropriate case, this
Court should consider Almendarez-Torres' continuing viability").
152 United States v. Bajakajian, 524 U.S. 321 (1998).
153 United States v. Hubbell, 530 U.S. 27 (2000).
154 Id. at 49 (Thomas, J., concurring, joined by Scalia, J.).
155 Id.
156 Crawford v. Washington, 541 U.S. 36 (2004).
157 Ohio v. Roberts, 448 U.S. 56 (1980).
158 Crawford, 541 U.S. at 62-65. The Court cited Roger W. Kirst, Appellate Court Answers
to the Confrontation Questions in Lilly v. Virginia, 53 SYRACUSE L. REV. 87, 105 (2003), which
found that accomplice statements to the government were admitted under the Roberts regime
more than a third of the time. Crawford, 541 U.S. at 64. As Jeff Fisher, the lawyer who argued
Crawford in the Supreme Court, has stated, "Under Roberts' totality of the circumstances test,
courts were finding almost anything and everything to indicate trustworthiness sufficient to over-
look the inability to cross-examine." Jeffrey L. Fisher, A Blakely Primer: Drawing the Line in
Crawford and Blakely, CHAMPION, Aug. 2004, at 18, 18, available at http://www.nacdl.org/public.
nsf/championarticles/a0408p18.
159 Crawford,541 U.S. at 43-50.
2006] Originalists,Politics, and Criminal Law 1069

ment's protection to the vagaries of the rules of evidence, much less to amor-
phous notions of 'reliability.'"160 Instead, "the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for
cross-examination." 161 This view of the Confrontation Clause is one that Jus-
tice Scalia had been proposing in the years leading up to Crawford because of
his view that an originalist interpretation of the Constitution requires as
much. 162 Crawford represented the triumph of this view, and though its ulti-
mate scope remains unclear and "testimonial" might be defined narrowly,
163
many criminal defendants have already benefited from the decision.
Though concurring in the result in Crawford, Chief Justice Rehnquist and
Justice O'Connor made clear that they dissented from the decision to over-
rule the Roberts balancing test.' 64
Of course, there are also many areas where the Court's pragmatists
sided with defendants when neither of the originalists did. Perhaps the most
noteworthy example is Dickerson v. United States, 165 in which the Court, in
an opinion by Chief Justice Rehnquist joined by Justices O'Connor, Ken-
nedy, and the liberal Justices, declined to overrule Miranda and held that it
could not be overruled by Congress, either. Justices Scalia and Thomas dis-
sented. 166 This was an important criminal procedure decision because it em-
phasized the enduring importance of Miranda. 67 In addition, as noted
above, the conservative pragmatists have been far more receptive than the
originalists to the claims of capital defendants. They have also been more
willing to rule for defendants in cases raising equal protection challenges to

160 Id. at 61.

161 Id. at 68.
162 In 1990, for example, Justice Scalia dissented, along with Justices Brennan, Marshall,
and Stevens, in Maryland v. Craig,497 U.S. 836 (1990), because the Court allowed a child wit-
ness to testify via closed-circuit television in a sex abuse case. Craig, 497 U.S. at 860 (Scalia, J.,
dissenting). Justice Scalia thought this failed to comply with the Confrontation Clause because,
in his view, the Court was "not free to conduct a cost-benefit analysis of clear and explicit consti-
tutional guarantees, and then to adjust their meaning to comport with our findings." Id. at 870.
For other cases in which Justice Scalia ruled in favor of a defendant's Confrontation Clause
claim, see Idaho v. Wright, 497 U.S. 805 (1990); Coy v. Iowa, 487 U.S. 1012 (1988); Cruz v. New
York, 481 U.S. 186 (1987).
163 Just as the Rehnquist Court's jury decisions have dramatically changed day-to-day crim-
inal practice, so, too, has Crawford. There have already been a host of trial and appellate court
decisions holding evidence inadmissible in light of Crawford. Robert P. Mosteller, Crawford v.
Washington: Encouragingand Ensuring the Confrontationof Witnesses, 39 U. RICH. L. REV. 511,
527 n.70 (2005) (listing cases). For an informative overview of post-Crawford legal opinions, see
Jeffrey L. Fisher, Crawford v. Washington: Reframing the Right to Confrontation, http://www.
dwt.com/lawdir/publications/CrawfordOutline.pdf (last visited Apr. 19, 2006).
164 Crawford, 541 U.S. at 69 (Rehnquist, J., concurring in the judgment).
165 Dickerson v. United States, 530 U.S. 428 (2000).
166 Id. at 444 (Scalia, J., dissenting).
167 The practical effect of Dickerson, however, should not be overstated because of the
many exceptions to Miranda that the Court's conservatives have allowed. See Stephanos Bibas,
The Rehnquist Court's Fifth Amendment Incrementalism, 74 GEO. WASH. L. REV. 1078 (2006).
In addition, Chief Justice Rehnquist's vote in Dickerson might be seen less as an endorsement of
Miranda than as an attempt to make sure the opinion affirming the decision was written nar-
rowly. See R. Ted Cruz, In Memoriam: William H. Rehnquist, 119 HARV. L. REV. 10, 14-15
(2005).
1070 The George Washington Law Review [Vol. 74:1043

jury selection 168 and cases involving defendants' habeas rights. 169 In addition,
in City of Chicago v. Morales,170 Justices O'Connor and Kennedy both joined
Justices Stevens, Souter, Ginsburg, and Breyer in finding a Chicago ordi-
nance against gang loitering to be impermissibly vague.
Justices O'Connor and Kennedy also ruled for defendants in some
Fourth Amendment cases where the originalists did not.'7' In City of Indian-
apolis v. Edmond,172 they held that a vehicle checkpoint to interdict unlawful
drugs violates the Fourth Amendment. In Ferguson v. Charleston,173 they
concluded that a state hospital could not perform a drug test on patients to
obtain evidence for law enforcement purposes if the patient did not consent.
Justice O'Connor was the only conservative to join the Court's liberals in
siding with the defendant against an officer's claim of qualified immunity in a
case in which a warrant application listed items to be seized but the warrant
itself did not. 174 And in Atwater v. City of Lago Vista, 175 she dissented along
with Justices Stevens, Ginsburg, and Breyer from the majority's decision
holding that the Fourth Amendment does not forbid a warrantless arrest for
a minor criminal offense that is punishable only by a fine. For his part, Jus-
tice Kennedy dissented, along with Justice Stevens, from the Court's decision
to allow a police officer making a traffic stop to order passengers to exit the
1 76
car.
Justices O'Connor and Kennedy also disagreed with each other in other
cases, reflecting their respective individual commitments to defense interests
in particular circumstances. Justice O'Connor, for example, showed a
stronger commitment to the right to counsel1 77 and the ability of the defen-
178
dant to have a fair opportunity to put forth evidence in his or her defense

168 See, e.g., Campbell v. Louisiana, 523 U.S. 392 (1998) (concluding that a white defendant
has standing to raise an equal protection claim that black jurors have been discriminated against
in grand jury selection).
169 See, e.g., Bousley v. United States, 523 U.S. 614 (1998) (holding that a defendant who
procedurally defaulted on a claim that a plea was not knowing and voluntary could establish
constitutional error if he could show he was actually innocent of the charges). Justice Kennedy
also dissented, along with Justices Stevens and Souter, in Dretke v. Haley, 541 U.S. 386 (2004),
disagreeing with the majority that when a federal court faces allegations of actual innocence by a
defendant, it must first address all the nondefaulted claims for comparable relief. Dretke, 541
U.S. at 397-98 (Stevens, J., dissenting).
170 City of Chicago v. Morales, 527 U.S. 41 (1999).
171 Chief Justice Rehnquist, however, sided with the government in these cases.
172 City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
173 Ferguson v. City of Charleston, 532 U.S. 67 (2001).
174 See Groh v. Ramirez, 540 U.S. 551 (2004).
175 Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
176 See Maryland v. Wilson, 519 U.S. 408 (1997).
177 See, e.g., Alabama v. Shelton, 535 U.S. 654 (2002) (holding that a suspended sentence
that may ultimately deprive someone of liberty may not be imposed unless the defendant was
given access to counsel).
178 See, e.g., Gray v. Maryland, 523 U.S. 185 (1998) (disallowing admission of a codefend-
ant's confession where the defendant's name in the confession was substituted by the word "de-
leted" or a blank space but suggesting other formulations that would allow the confession to
come in); Montana v. Egelhoff, 518 U.S. 37, 61 (1996) (O'Connor, J., dissenting) (concluding
that a Montana law that disallowed the defendant to show that he was intoxicated as a defense to
a mental state element of a criminal offense violated due process).
2006] Originalists,Politics, and Criminal Law 1071

than the Court's other conservatives. Justice Kennedy has been relatively
more protective of defendants' interests under the Self-Incrimination
1 79
Clause.
A closer look at the cases, then, shows that in many important areas,
originalists side with defendants more than pragmatists, and in other areas,
pragmatists are more favorable to the accused. Whether one methodology is
viewed more favorably than the other to defendants depends in part on the
importance one places on each of these areas. These cases also show that the
conservative Justices cannot be neatly arrayed according to the attitudinal
models when it comes to criminal matters. The Justices' methodology, as
well as their politics, must be considered.

B. Beyond Politics
The previous section explained that the Rehnquist Court's originalists, in
a number of cases, have found themselves joining forces with the Court's
more liberal Justices to rule for criminal defendants even when one or more
of the Court's pragmatic conservatives disagreed.
This pattern is revealing because it shows that the Justices' votes in crim-
inal cases-at least noncapital ones-are more complicated than commonly
recognized. In particular, the conventional view that Justices Scalia and
Thomas represented the most politically conservative viewpoint on the
Rehnquist Court1 80 does not hold if noncapital criminal cases are studied sep-
arately. In many important areas, the Rehnquist Court's originalists have
favored the accused while its conservative pragmatists have not. Looking at
the period from the October Term 1994 to the October Term 2003, Chief
Justice Rehnquist was the Court's most conservative voice in constitutional
criminal matters. 181 Justice Scalia, one of the Court's originalists, ruled for

179 In Mitchell v. United States, 526 U.S. 314 (1999), he, along with Justices Stevens, Souter,
Ginsburg, and Breyer, concluded that the right against self-incrimination applies to the sentenc-
ing phase such that a court cannot draw an adverse influence from a defendant's silence. Justice
Kennedy showed a similarly strong conception of the right against self-incrimination in Chavez
v. Martinez, 538 U.S. 760 (2003), in which he dissented because he believed that an actionable
violation could arise under the Self-Incrimination Clause "when the police, after failing to warn,
used severe compulsion or extraordinary pressure in an attempt to elicit a statement or confes-
sion." Chavez, 538 U.S. at 789 (Kennedy, J., concurring in part and dissenting in part). And in
Missouri v. Seibert, 542 U.S. 600 (2004), he joined Justices Stevens, Souter, Ginsburg, and Breyer
in holding that a confession following Miranda warnings that were themselves given after a de-
fendant provided an unwarned confession is inadmissible.
180 See supra note 10; see also Elisabeth Bumiller, Bush Vows to Seek ConservativeJudges,
N.Y. TIMES, Mar. 29, 2002, at A24 (singling out Justices Scalia and Thomas as the Court's two
most conservative members); David D. Kirkpatrick, Court in Transition: Conservatives; Conserv-
atives Are Wary over President'sSelection, N.Y. TIMES, Oct. 4, 2005, at A24 (describing conserva-
tives' desire that President Bush select a nominee to the Supreme Court "in the mold of Justices
Antonin Scalia and Clarence Thomas").
181 Indeed, Chief Justice Rehnquist's votes might understate how conservative he was on
criminal matters if he voted for defendants in some cases for strategic reasons. As Chief Justice,
he was entitled to assign opinions when he was in the majority, so he may have decided to vote
with the majority in some cases to assign opinions to himself or to other Justices who shared his
view in a case in order to avoid having a Court opinion that was written in a manner even more
favorable to defendants. One notable example where this appears to be the case is his vote in
Dickerson. See Cruz, supra note 167, at 14-15.
1072 The George Washington Law Review [Vol. 74:1043

defendants as often as Justices O'Connor and Kennedy, the swing votes on

the Court.' 82 Even more importantly, the criminal cases in which the
originalists ruled for defendants involved issues with substantial ramifications
for the day-to-day practice of criminal law. Part I explored the most signifi-
cant group of cases in this vein, and the previous section discussed many
83
other cases with broad impact on the operation of criminal law.'
Thus, while originalism is typically viewed as the most conservative juris-
prudential philosophy, this has not held true in noncapital criminal matters.
A conservative Justice who adheres to a pragmatic method of interpretation
is just as likely, on balance, to reach conservative outcomes in this category of
cases than a conservative jurist who follows an originalist methodology. And
an originalist is more likely to reach a liberal outcome that has sweeping
consequences in many important areas, such as the meaning of the jury guar-
antee, the treatment of testimonial statements under the Confrontation
Clause, and the scope of the Fifth Amendment privilege against self-
incrimination.
To understand why this would happen, despite the predictions of attitu-
dinal models, 184 it is helpful to consider what might push a conservative Jus-
tice with a stated commitment to originalism toward a ruling in favor of a
criminal defendant. Consider, then, the Constitution's text, structure, and
history related to the state's criminal power. The Framers were aware of the
danger the state poses to individual liberty in criminal matters, and that is
reflected in the many constitutional provisions that apply to criminal pro-
ceedings. 185 Indeed, the danger of state criminal power occupies much of the
Constitution. Article I prohibits bills of attainder,
18 6
ex post facto laws, 187
and suspension of the writ of habeas corpus. 188 Article III ensures that the
trial of all crimes shall be by jury. 189 Four of the first ten amendments govern
the criminal process. The Fourth Amendment's provisions regulate police
and investigative powers.' 90 The Fifth Amendment covers the right to a
grand jury and the prohibition on double jeopardy, not to mention the broad
protections offered to criminal cases through the Due Process Clause. 191 The

182 In many cases, of course, the conservatives voted as a bloc against the accused. The
interesting comparison is how they voted when they diverged. That is, the key question is
whether it was more likely that the pragmatists or the originalists voted in favor of the accused
when the conservative vote was divided.
183 Crawford, for instance, affects a huge number of criminal cases. Each week, at least
twenty opinions are issued citing Crawford. Robert William Best, To Be or Not to Be Testimo-
nial? That Is the Question: 2004 Developments in the Sixth Amendment, 2005 ARMY LAW. 65, 87.
To take another example, resolving the question of whether harmless error applies to flawed
instructions on material elements is also significant to criminal practice because a rule making
harmless error inapplicable would mean new trials in every case with erroneous instructions.
184 See supra notes 8-10 and accompanying text.
185 For a longer discussion of these provisions, see Barkow, supra note 45, at 1012-17.
186 U.S. CONST. art. I, § 9, cl. 3; id. § 10, cl. 1.
187 Id. § 9, cl. 3; id. § 10, cl. 1.
188 Id. § 9, cl. 2 (prohibiting suspension of the writ of habeas except "when in Cases of
Rebellion or Invasion the public Safety may require it").
189 Id. art. III, § 2, cl. 3.
190 Id. amend. IV.
191 Id. amend. V.
20061 Originalists,Politics, and Criminal Law 1073

Sixth Amendment buttresses Article III's jury protections by guaranteeing

that the jury will be a local one.1 92 In addition, it provides for the right to a
speedy and public trial and notice of criminal charges, as well as the rights to
confrontation and the assistance of counsel.1 93 The Eight Amendment pro-
hibits the state from imposing cruel and unusual punishments. 194 In addition,
the Constitution's separation of powers requires that every branch of govern-
ment-legislative, executive, and judicial-plus the jury must agree before a
criminal conviction can be imposed. 195 The Constitution is therefore replete
with protections for criminal matters.
These provisions were deliberately designed to make it difficult for the
government to act in criminal proceedings. The constitutional criminal pro-
tections-grounded in both rights and structure-are intentionally ineffi-
cient. Thus, someone who interprets the Constitution based on the original
meaning of its provisions should enforce these provisions even if they are
inconvenient for the government. The originalist is not, pursuant to the
methodology, supposed to weigh the interests of the individual defendant
against the changing needs of the state unless the Constitution contemplates
such weighing. If the Constitution speaks in terms of categorical rights and
that was the meaning of a constitutional provision at the time of the framing,
the committed originalist should reject government requests for adaptation
and instead uphold the right in categorical terms, even if that results in
sweeping changes from the status quo.
It would be naYve, of course, to assume that originalists perform this task
unaffected by their own biases.1 96 It is likely that a Justice chooses original-
ism as his or her preferred methodology because it will, in the vast majority
of cases, produce a conservative outcome that accords with his or her prefer-
ences. Criminal law represents one of the few areas where originalism might
create dissonance between the Justice's ideological preferences and what the
methodology requires. In many cases, that gap might be too large for the
Justice to accept, and some self-proclaimed originalists will fail to find cate-
gorical rights even when there is historical evidence to support their existence
because their view of the historical record will be colored by their prefer-
ences. That originalists often disagree with one another about what the Con-
stitution requires shows the malleability of this methodology, and therefore
its susceptibility to this kind of bias. But the Rehnquist Court cases discussed
above demonstrate that this is not always the case and that originalists will
often feel constrained by their methodology to vote a certain way, even if

192 Id. amend. VI.

193 Id.
194 Id. amend. VIII.
195 For an analysis of the Constitution's separation of powers and the criminal law, see
Barkow, supra note 45.
196 See Robert M. Howard & Jeffrey A. Segal, An Original Look at Originalism, 36 L. &
Soc'y REV. 113, 134 (2002) (analyzing arguments about text and intent made to the Court and
finding that "idelogical predispositions to vote a particular way overwhelm Supreme Court deci-
sion making, regardless of whether or not one premises it on an originalist interpretive method
or on some vague notion of justice").
1074 The George Washington Law Review [Vol. 74:1043

that means a vote in favor of criminal defendants

197
with far-reaching conse-
quences that they otherwise do not support.
Moreover, the relevant inquiry here is not whether originalism will al-
ways restrain personal preferences-it will not-but whether originalism
might be more likely than other methodologies to restrain personal prefer-
ences in criminal cases, assuming Justices with the same political preferences.
Frank Cross analogizes this constraining function of law to "ropes binding a
judicial Houdini":
The ropes may be tight or loose, possibly knotted with skill and re-
dundancy. These ropes will strive to bind thousands of judges, each
of whom possess different levels of escape skills. If we try to con-
strain judges with law, it is imperative to understand which brand 1of
98
rope and which type of knot are most effective and inescapable.
So, to phrase the inquiry more precisely, is a conservative Justice who takes
an originalist approach to interpreting the Constitution more likely to rule
against criminal defendants than a conservative Justice who takes a prag-
matic approach? 199
When that comparison is made, there is reason to believe that a con-
servative-minded pragmatist might be more likely to rule according to his or
her policy preferences and therefore vote against criminal defendants or to
vote for criminal defendants on narrower grounds than the originalists in
many important areas. One of the hallmarks of pragmatism is that it allows a
weighing of the relevant interests. A conservative pragmatist is likely going
to be more persuaded by government claims that courts should defer to polit-
ical judgments and that some accommodation should be made to allow gov-
ernment to handle the massive number of criminal cases that are now
prosecuted without being bogged down by the vision of the Framers. 2110 At
the same time, the interests of defendants are likely to be systemically under-
valued. Criminal defendants are a notoriously unsympathetic group, and it is
often difficult to see why the many protections established in the Constitu-
tion need to apply with full force in every case. It is thus all too tempting to
relax them in individual cases, especially in the face of a serious crime. A
frequently cited vice of originalism, its rigidity, therefore might become a

197 Cf Michael. C. Dorf, Whose Ox Is Being Gored? When Attitudinalism Meets Federalism
24 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Group, Paper No. 06-102,
2006), http://ssrn.com/abstract=887744 (noting that a judge who adopts a particular approach to
a category of cases, even if she does so based on the belief that the approach will yield a pattern
of results over time, should not be criticized as engaging in "result-oriented judging" if the judge
"follows that approach even though it means casting votes in favor of results she dislikes").
198 Cross, supra note 8, at 326.
199 While one could ask whether a liberal Justice who takes an originalist approach to inter-
preting the Constitution is more likely to rule against criminal defendants than a liberal Justice
who takes a pragmatic approach, that inquiry is less interesting because of the current composi-
tion of the Court. At present, there are no liberal Justices who claim to be originalists in any
strong sense. If and when the composition of the Court changes, this too might become a fruitful
inquiry. In a symposium on the Rehnquist Court, however, the more pertinent question is how
the methodologies compare when employed by conservative jurists.
200 See Myers, supra note 11, at 1407 (describing "appeal to democratic values" and "con-
cern over the social and political costs" of a decision as "centrist strategies").
2006] Originalists,Politics, and Criminal Law 1075

virtue in criminal cases where the values underlying a constitutional provi-

sion might be easily overlooked.
The Rehnquist Court's Sixth Amendment cases illustrate this dynamic.
The Court's originalists, Justices Scalia and Thomas, came out in favor of
strong jury rights based on the historical role of the jury. This led them to a
result with sweeping consequences. Thousands of criminal defendants across
the country stood to benefit from their ruling. In contrast, the Court's con-
servative pragmatists dissented. They rejected the categorical approach of
the majority and highlighted the negative consequences of the Court's deci-
sions. They noted that the decisions would undermine democratic judg-
ments. 20 ' They worried that the decisions would eradicate years of
sentencing reform. 20 2 And they predicted that there would be a litigation
explosion as defendants relied on the decisions to challenge their
2 03
sentences.
To be sure, sometimes the Court's conservative pragmatists take into ac-
count competing claims and decide in favor of defendants when originalists
would not because the flexibility argues in favor of a more defendant-friendly
position than a hard line based on originalism. But a key question worth
asking is which theory, as practiced by conservatives, is more likely to yield
conservative results in criminal cases. The answer, as shown above, depends
in large part on the type of criminal case. And it also depends on the Justice
employing the theory. Among the pragmatists, Chief Justice Rehnquist
rarely ruled for defendants in constitutional cases and, among the conserva-
tives, voted least often for defendants in all the criminal cases from the pe-
riod under study.
The claim here, then, is not that attitudinalists are wrong. Their work
and the work of other political scientists studying how judges actually behave
is invaluable and has much descriptive force. 20 4 Nor is the argument that
originalism is a better method of interpretation in criminal cases or any other
context. Instead, the goal of this Article is a more modest one, and that is
both to challenge the idea that law does not act as a constraint on judges and
to question the conventional wisdom that adherents to originalism are the
most conservative members of the Court when it comes to criminal justice.
The methodology and those who adhere to it are more complicated than the
political models would suggest, and in many important areas, originalism pro-
duces favorable results for defendants when pragmatism does not.

201 See, e.g., United States v. Booker, 543 U.S. 220, 330 (2005) (Breyer, J., dissenting in
part) ("[Tihe Court's Sixth Amendment decisions-Apprendi, Blakely, and today's-deprive
Congress and state legislatures of authority that is constitutionally theirs."); Blakely v. Washing-
ton, 542 U.S. 296, 318-19 (2004) (O'Connor, J., dissenting) ("[A] legislature might rightly think
that some factors bearing on sentencing.., should not be considered in a jury's determination of
a defendant's guilt."); id. at 326-28 (Kennedy, J., dissenting).
202 See, e.g., Blakely, 543 U.S. at 323-26 (O'Connor, J., dissenting).
203 See id. at 326 ("[T]ens of thousands of criminal judgments are in jeopardy.").
204 For an excellent overview of the political science scholarship and what it has to offer
legal scholars, see Friedman, supra note 7, at 270-329.
1076 The George Washington Law Review [Vol. 74:1043

Conclusion

The Rehnquist Court's Sixth Amendment decisions were revolutionary

in terms of their effect on sentencing law and policy and their reliance on the
jury's place in the constitutional structure. For that reason alone, they should
be deemed an important part of the Rehnquist Court's legacy in criminal
justice.
But they are noteworthy as well because they were based on a union
between the more liberal Justices and those conservative Justices who adhere
to originalism. The cases therefore demonstrate that the interpretive meth-
odology of originalism can produce results in criminal cases that contradict
20
political models of the Court.
Future scholarship should explore this relationship between methodol-
ogy and substantive outcomes in criminal cases, not only because it is an
interesting scholarly question, but also because it is an important political
question. As new Justices are nominated to the Court, it is all too easy to
rely on generalizations. One of the generalizations recently expressed in the
confirmation hearings of Chief Justice Roberts by liberal politicians was that
a Justice in the mold of Chief Justice Rehnquist is preferable to one who
follows in the footsteps of Justice Scalia or Justice Thomas 2because the latter
06
are too conservative and do not respect individual liberty.
That may or may not be true, depending on what liberties one cares
about. Those who care about the role of the judiciary in protecting the inter-
ests of criminal defendants should closely explore the accuracy of this view,
because there is evidence that a Justice in the mold of Justice Scalia or Justice
Thomas would be preferable to a Justice in the mold of Chief Justice Rehn-
quist in many important criminal matters. This view did not get much of an
airing in the Roberts confirmation hearings because none of the powerful 20 7
interest groups involved in the hearing cared about criminal defendants.
This is unsurprising, of course, as criminal defendants fare poorly in all as-
pects of the political process.20 8 Political actors are unlikely to express con-
cern with the liberties of criminal defendants. The politics of crime are such

205 Cf Barry Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261,266-67 (2006) (noting
that political scientists should focus on opinions in addition to outcomes).
206 See, e.g., Robin Toner & David D. Kirkpatrick, Court in Transition: Clash of Philoso-
phies; Liberals and Conservatives Remain Worlds Apart on Roberts's Suitability, N.Y. TiMES,
Sept. 16, 2005, at A22 ("'My question is, Is Justice Roberts going to be a Scalia, a Rehnquist or
maybe a Kennedy? If I think he's going to be a Justice Scalia, who I like personally very much, I
vote no. If I think he's going to be a Kennedy, I vote yes. If I think he's going to be a Rehnquist,
I probably vote yes because it won't change anything."' (quoting Sen. Joseph R. Biden)); Press
Release, Sen. Charles Schumer, Statement of Sen. Schumer in Opposition to Roberts Nomina-
tion to Supreme Court (Sept. 22, 2005), http://schumer.senate.gov/SchumerWebsite/pressroom/
press-releases/2005/PR41839.Oppose%20Roberts.09.22.05.pf.html (explaining that Senator
Schumer chose to oppose Justice Roberts's nomination because of "the risk that he might be a
Thomas," while noting that if Roberts were "a Rehnquist," it "would not be cause for exultation;
nor would it be cause for alarm").
207 Indeed, criminal law matters were hardly mentioned.
208 For a discussion of the politics of crime, see Rachel E. Barkow, Federalism and the
Politics of Sentencing, 105 COLUM. L. REV. 1276 (2005); Barkow, supra note 37.
2006] Originalists,Politics, and Criminal Law 1077

that neither conservative nor liberal politicians express concern with criminal
defendants' interests. Instead, virtually all politicians are "tough on crime."
But that is precisely why the role of the judiciary in criminal matters is so
important, and why special attention should be paid to the kind of judge who
is most likely to look after the interests of defendants. As one originalist has
stated, the "most significant role[ ]" for judges is "to protect the individual
criminal defendant against the occasional excesses of th[e] popular will, and
to preserve the checks and balances within our constitutional system that are
precisely designed to inhibit swift and complete accomplishment of that pop-
ular will."'2° 9 It is time to pay more attention to what kind of judge best
performs that role. To be sure, it seems safe to assume on a general level
that, everything else being equal, a liberal judge is more likely than a con-
servative judge to protect the interests of criminal defendants. But the more
interesting question is how legal methodology factors in the mix when com-
paring judges with the same basic ideology. If the Rehnquist Court is any
indication, the answer is a complicated one. In one of the most important
jurisprudential developments in criminal law-sentencing-methodology
mattered. Because methodology will continue to matter, it is time to give
more thought to its relationship to criminal justice.

209 Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Cti. L. REV. 1175, 1180
(1989).