How Might the GOP’s Dissensus on Law and Order Affect the Court?

Late last year, the New York Times had an interesting piece on how criminal justice issues (“law and order”) have begun to divide Republican elites.  The article spends a fair amount of time on Senator Rand Paul.  Paul, an apparent 2016 GOP hopeful (though Bloomberg‘s Jonathan Bernstein believes he is a long-shot), has been invoking criminal justice issues for some time as a way to differentiate himself from the Republican field. Indeed, Paul penned an op-ed in Time that largely signs onto criminal justice policies associated with Democrats. But the split goes beyond Senator Paul. The New York Times piece reports:

“It’s not as clear-cut of an issue as it has been in the past, and there’s a pretty significant diversity of opinion in the party,” said Lanhee Chen, Mitt Romney’s policy director in 2012, about Republican views on crime and justice.

Newt Gingrich, the Times tells us, also has some misgivings about the GOP’s long-time support for certain policies — e.g., mandatory-minimums, controversial policing practices, and the general rise of the carceral state — that are now being scrutinized in the popular press as policy failures (though scholars from many social science disciplines have been calling attention to these issues for some time).  Charles Koch, the famous libertarian donor-cum-fundraising ringleader, also plans to highlight criminal justice issues this year.

However, other Republican opinion leaders like John Bolton dismiss this rethinking:

“What some who call themselves libertarians are doing, whether it’s on national security or these other issues, is in reality much closer to the Democrats, and that’s why they’re getting such national attention,” said John R. Bolton, a former United Nations ambassador, in a phone interview, saying Mr. Paul “has a lack of history and education” on crime-related issues.

Likewise, Rudy Guiliani has been outspoken on the recent tumult regarding the shooting death of Michael Brown in Ferguson and Eric Garner’s death at the hands of the Staten Island police. Giuliani believes, or is at least willing to say, that President Obama’s “anti-police rhetoric” contributed to the shooting deaths of two Brooklyn police officers by a Baltimore gunman on December 20.

Without explicitly highlighting this internecine dispute as a “wedge issue,” the Times does hint that Paul’s actions are consistent with what we know about wedge issues — Senator Paul using a cleavage point issue in an attempt to entice committed liberals to vote Republican on the basis of his conception of law and order/criminal justice issues (Hillygus and Shields 20008).

But the issue of interest to students of the Court is whether this infighting signals a rethinking of the law and order issue on the Right and whether the GOP elites’ dissensus is a crack — perhaps an important one — in the New Right regime that has emphasized the issue and largely nominated law and order conservatives to the Court (Clayton and Pickerill 2004).  One can trace the law and order issue (at least the modern form, Weaver 2007; Gottschalk 2006; McMahon 2011) back to (most of) Nixon’s appointees and continuing through to Justice Alito’s nomination.

That is to say, the better way to look at these rumblings on the Right, is not whether a long-shot candidate like Paul — who is a long-shot in part because of his heretical views on criminal justice policy that many party elites would have to accept, on some level, in the invisible primary in order to accept Paul as their candidate in 2016 — can use law and order as a wedge issue to attract otherwise Democratic voters, but of issue evolution (Carmines and Stimson 1989) such that Democratic politicians and elites can use the issue of criminal justice reform against Republicans to their electoral advantage (just as Republicans have wielded law and order as a cudgel).

Should the Democrats, taking advantage of the Right’s fracturing on the issue, successfully transform “law and order” rhetoric into “criminal justice reform” as a meaningful electoral issue — and this is by no means inevitable — there will be consequences for the Court’s criminal justice jurisprudence.

In the near-term, if the Court’s current New Right appointees do not heed the putatively changing politics, there may be “Court-curbing” mechanisms that legislators will wield (Clark 2011). One can make the case that Paul’s Time op-ed is an early, probably efficaciously premature, warning shot denoting that certain elites care about this issue: Paul explicitly mentions racially disparate sentences and felon disenfranchisement. Either claim can be easily constitutionalized/legalized as an equal protection or Voting Rights Act violation by public-interest litigators and criminal defense attorneys as a legal attack on these policies (Keck 2014).  The intellectual framework for these legal arguments already exists but has few takers in the federal judiciary (see, e.g., Sklansky 1995). [N.b., the claim here is not that Paul’s op-ed is explicitly Court-curbing, but that it is an early warning signal].

Longer-term change to the Court’s rulings would come from what we know about “political entrenchment” (Gillman 2006) and what Jack Balkin calls “idelogical drift” (Balkin 1993).  What racial equality really means would shift under this scenario.  That is, racial equality would come to mean, as it does not today, that racially disparate sentences are unconstitutional.  The hegemony of the color-blind jurisprudential regime that has helped constitutionalize law and order ideas into Supreme Court precedent would face doctrinal death, most likely as a process of distinguishing away inconvenient precedents or stealth overruling.  In this scenario, perhaps once SCOTUS signals a willingness to revisit some of its law and order precedents, the lower courts will take more seriously the equal protection claim of a Black criminal defendant (Keck 2014).  Or perhaps a district court judge, faced with the weight of actually sentencing a defendant, may be the first domino.  (A number of lower federal court judges have already signaled their frustration with the sentencing process).

As of right now, these types of legal arguments have not gotten much traction (see here for decisions from the Second, Sixth, Ninth and Eleventh Circuits rejecting such claims).  But should we later see a resurgent progressive political and judicial “revolution” vis-a-vis criminal justice, we might be able to point to the increasingly fractious GOP elites’ position on law and order as the clue that criminal justice’s worm had turned.

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