The Unpredictable Constitution

10. The Anatomy of an Execution: Fairness versus “Process”

Chapter 10 The Anatomy of an Execution Fairness versus “Process” Stephen Reinhardt [R]eversal by a higher court is not proof that justice is thereby better done.1 The year I graduated from law school, the Warren Court decided Brown v. Board of Education.2 Brown, perhaps the most important Supreme Court decision in history, introduced a new judicial era, an era in which the courts became the protectors of the rights of the poor, the disenfranchised, and the underprivileged. The Warren Court—the Warren-Brennan era—will be remembered for that legacy. The Court’s decisions were guided by a broad, humanitarian vision of the role of the judiciary and of the Constitution as a living document. The Warren Court expanded concepts of equality, due process, and individual liberty, handing down decisions that redefined notions of justice and fairness. In the area of civil rights, the Warren Court helped usher in revolutionary and irreversible changes in race relations. It also issued landmark First Amendment decisions such as New York Times Co. v. Sullivan3 and Engel v. Vitale,4 expanding the protections afforded the free press and strengthening freedom from state-sponsored religion. It implemented “one person, one vote” in Reynolds v. Sims,5 changing our entire political system.6 And in its 239 This lecture was delivered on October 20, 1998, and appeared in 74 N.Y.U.L. Rev. 313 (1999). criminal justice decisions, the Warren Court established groundbreaking rules in cases such as Gideon v. Wainwright,7 Miranda v. Arizona,8 and Mapp v. Ohio,9 for the first time implementing some of the Bill of Rights’s most fundamental promises and giving life to the Fourth, Fifth, and Sixth Amendments. The rules were as elementary as the one holding that everyone charged with a crime has the right to be defended by counsel. And although Earl Warren had left the Court by 1969, the Warren-Brennan era continued long enough to give us Roe v. Wade,10 which afforded women the most basic of rights, and Furman v. Georgia,11 which for a brief period held the death penalty unconstitutional. At the time, we thought that there was no turning back, that the Supreme Court’s transformation of the role of the judiciary would guarantee a new era in constitutional law, an era in which progress would be the rule, forward would be the direction, and the interests and welfare of the people would be dominant. Today, we face a very different Court, one that has also had a major impact , and one that will be remembered for its own legacy. The Rehnquist Court will be remembered for its stark reversal of the Warren-Brennan Court’s expansion of individual rights and protections and for elevating procedural rules over substantive values and limiting rights generally, especially those of racial minorities.12 It will be remembered for erecting technical barriers that foreclose relief to persons with meritorious constitutional claims. It will be known for reducing access to the federal courts and for placing the interests of the state ahead of those of its citizens. Without formally overruling the liberties and freedoms recognized by the Warren Court, the Rehnquist Court has rendered many of them virtually unenforceable ,13 the exceptions being property rights14 and, to the surprise of most observers, free speech.15 The Rehnquist Court has drawn the line regarding substantive due process, refusing to recognize any new, unenumerated rights16 —a principle that would have left us without the critical protections of privacy recognized in decisions such as Griswold v. Connecticut17 and Roe v. Wade.18 And one can only contemplate with dread the answer the current Court would have given had it been asked to overrule Plessy v. Ferguson.19 The Rehnquist Court has placed its greatest emphasis on the expansion of nonconstitutional doctrines such as mootness, ripeness, standing, procedural default, nonretroactivity, independent state grounds, and abuse of the writ. It also emphasizes at every opportunity nostrums such as comity and finality. Under the Rehnquist Court’s jurisprudence, these rules regularly prove decisive in limiting the ability of lower federal courts to redress con240 s t e p h e n r e i n h a r d t stitutional violations, in shutting the doors of the courthouse to ordinary people. The Court’s constriction of rights has been most notable in the criminal justice area: in particular, through assaults on what was...