The Court and law enforcement.

Supreme Court appointments are like “Law & Order” episodes: The cast of characters changes, but the dialogue always sounds the same. Whoever the nominees are, the script for the inevitable confirmation battles has already been written. Abortion, church and state, more abortion, gay rights, and still more abortion—interest groups and senators are setting the table, and that’s the menu. It’s strangely disconnected from what the Supreme Court actually does and from the places where the justices really exercise power. If Roe v. Wade goes by the boards, abortion law will stay roughly the same. Nor will American life change much if the Ten Commandments start dropping off courthouse walls.

By contrast, another aspect of the Court’s work affects lots of lives. The United States incarcerates more than two million people in its prisons and jails today, roughly seven times the number held in 1970 and five times the 1980 figure. For the past 40 years, the Supreme Court has helped shape the process that puts those men and women behind bars. When can police officers frisk suspects on the street or search their cars? When do police have to give Miranda warnings? How hard can they push suspects to confess—and how hard can prosecutors push defendants to plead guilty? How must juries be selected? Which sentencing procedures are permissible, and which ones aren’t? Supreme Court justices answer all these questions and dozens more like them.

The answers matter enormously. Which means that the Supreme Court’s most important job is not managing the culture wars. Regulating the never-ending war on crime is a much bigger task. Alas, it may also be the job the Court does worst.


Civilizations define themselves by when, how, and whom they punish. Those choices are especially important in a society like ours, with a long history of both criminal violence and official racism. Forty-five percent of American prisoners are black. The imprisonment rate—the number of prison inmates per 100,000 people—stood at 482 in 2003. Among black males, the figure was 3,405. For black men in their late twenties, the number exceeds 9,000. Court decisions that help shape those numbers are vastly more important than the latest church- state fight.

And the justices do shape those numbers, both by what they regulate and by what they leave alone. Fourth Amendment case law makes it easy to justify police stops and frisks in the inner-city neighborhoods where many of those young black men live. In one recent case, a Chicago man saw a police van and ran. According to the justices, that was reason enough to seize him. The result in Illinois v. Wardlow sounds obvious to middle-class suburbanites. But, to people in neighborhoods like Wardlow’s, running from the cops may be more a survival skill than a sign of guilt.

Another recent case, Kyllo v. United States, involved a defendant who was growing marijuana inside his house on Rhododendron Drive (no kidding) in Florence, Oregon. Using a thermal imager, officers discovered that one wing of the house was a lot warmer than the rest. Inside, they found more than 100 marijuana plants. The Supreme Court held that the thermal imager violated the defendant’s rights. Decisions like Wardlow and Kyllo make it a good deal easier for the police to make drug busts on poor city streets than in the suburbs.

That’s not all. Criminal trials have grown so cumbersome (and budgets so strained) that hardly anyone uses them. Nineteen out of every 20 felony convictions stem from guilty pleas. What does the Supreme Court have to do with that? Plenty. The Court has imposed elaborate rules governing nearly every aspect of criminal trials, from jury selection to sentencing. That makes trials more expensive. Worse, the justices keep refining procedural rules—making them so nuanced that no one can understand them. The examples are endless. The prosecutors in Miller-El v. Dretke struck almost all the blacks from the defendant’s jury. You’re not supposed to do that. A straightforward case, right? Not when Justice David Souter was through with it. His majority opinion went on for 33 pages of mind-numbing detail, muddying the waters. And, because lawyers can’t tell what the law requires, they waste more time and energy arguing about it, which makes trials more costly still.

It gets worse. Last January, in United States v. Booker, the justices handed down a decision that rewrote key federal sentencing statutes. Booker provided dueling majority opinions by two opposing blocs of justices. Ruth Bader Ginsburg, the only justice to sign both, didn’t explain her views. Lawyers and judges were left scratching their heads.

Procedures should be clear and simple. For criminal trials, they are anything but. That breeds uncertainty. It also breeds litigation that focuses on the process, rather than on the question that criminal trials are supposed to answer: whether the defendant committed the crime.

Poor defendants can’t afford all that procedural litigation—hence the high guilty plea rate. Cash-strapped district attorneys know that and charge accordingly. So the universe of criminal defendants grows steadily poorer. In a society where race and class often coincide, these class biases tend to produce racial biases. This may explain why blacks, who were one-third of the total prison population in 1960, now make up nearly half.

These sound like liberal complaints. But conservatives have a lot to complain about, too, as they would know if they paid attention to anything other than the culture wars. Miranda doctrine bars the police from even the most genteel questioning of suspects who say the magic words—”I want to see a lawyer”—after they hear the famous warnings. That is a valuable gift to sophisticated criminals who know enough to keep their mouths shut. Not coincidentally, it is also a large gift to terrorists—which is why the government does not want to abide by U.S. law when questioning suspected Al Qaeda members.


Why does the Court do such a bad job in this area? The answer may be simple ignorance. The criminal justice system is a massively complex enterprise. Figuring out the effects of the latest abortion ruling is child’s play compared with unpacking the consequences of decisions like Wardlow and Kyllo on policing or the effects of cases like Miller-El and Booker on criminal trials and plea bargains. Getting those consequences right would be hard even for experts. And the highest court in the land is not filled with experts. Souter is the only sitting justice with substantial experience in criminal litigation—and that was on the not-exactly-mean streets of New Hampshire. Frontline urban prosecutors and defense attorneys rarely end up on federal appeals courts, the breeding ground for future justices. So they never make it to presidential short lists.

Justices who have never seen the inside of a police station are happy to expound on the virtues and vices of different kinds of drug enforcement. If they knew more, they might say less. Veterans of the criminal justice trenches understand that, when it happens, productive change comes from the men and women who serve in those trenches. Community policing and crime labs, drug courts and faith-based prison initiatives, “broken windows” policing and partnerships with inner-city churches—all the best ideas in contemporary criminal law enforcement bubbled up from below. None stemmed from judicial edicts.

Judging from the names bandied about in the press, the next couple of Supreme Court picks will be like the ones who have gone before. That’s a shame, but it need not be a tragedy. The justices—both old and new—need to remind themselves of a few simple truths. The Constitution guarantees a fair criminal process. That should mean a modest number of basic guarantees, defined as clearly as possible. Beyond the basics, legislators, prosecutors, and police officers should be free to experiment. The criminal justice system desperately needs innovation. Constitutionalizing everything five justices can agree on stifles innovation. If President Bush wants good results in this piece of the legal landscape, he should appoint justices who will let the real reformers do their jobs.

This article originally ran in the July 25, 2005 issue of the magazine.