New Justices and the evolution left on criminal justice matters

Some new SCOTUS commentaries spotlight the work of the new Justices and jurisprudential evolution.  The New York Times focuses on the new Chief with pieces by Linda Greenhouse and Andrew Cohen; Tony Mauro has this Legal Times piece focused on the death penalty.  All three are great reads, and I found these passages especially interesting:

From the Greenhouse piece: "Whether John Roberts's first year is a good predictor of his 10th, 20th or 30th is an open question.  According to a new study by the political scientists Lee Epstein and Jeffrey A. Segal, Chief Justice Earl Warren voted against criminal defendants and civil rights litigants 62 percent of the time during his first term.  Eventually, of course, he became their champion."

From the Mauro piece: "Says [a SCOTUS litigator]: 'The enormous moral gravity of the death penalty, and the risk of error, are really weighing on [Justice Kennedy].' 

[Bryan] Stevenson believes that over time, similar concerns will weigh on Alito and Chief Justice John Roberts Jr., as well.  Neither has had much exposure to death penalty cases.  Fewer than 20 executions have taken place in Alito's 3rd Circuit in the past 30 years.  Roberts handled none on the D.C. Circuit, though as a private attorney he helped represent a Florida death row inmate pro bono. Their support for capital punishment could soften as late-night appeals come into the high court week after week, Stevenson predicts. 'It's not until you are on the Supreme Court for several years that you get a feeling for how problematic and vexing the death penalty is.  After a while you get exhausted and say, "We should be doing better."'"

The tendency of some justices to drift left while on the Court has been called the Greenhouse effect, on the (suspect) theory that elite SCOTUS reporters goad Justices to move left.  In the criminal justice arena, I think a much better explanation comes from the distinct perceptions and perspectives a Justice has during tenure on the Court. 

When on a lower court, judges see many relatively weak claims from (almost always) guilty defendants, while prosecutors typically pursue only the strongest claims on appeal.  (This dynamic in part explains why the pattern of post-Booker reasonableness review heavily favors the government.) As a result, a lower court judge can believe the criminal justice system works relatively well, especially in settings (like the DC or 3d Circuits) where few corners are cut by prosecutors.

In contrast, on the Supreme Court, the cert process and pool tend to screen out weak claims by defendants.  Also, the cert pool collects the most egregious examples of injustices to defendants from state and federal courts nationwide.  As Justices repeatedly see only the ugliest examples of the criminal justice system gone awry, it is not surprising that some become progressively more sympathetic to defense claims over time.

In addition, Justices may come to lose faith in other institutions' efforts to remedy problems in the criminal justice system.  Justice Blackmun's famous evolution to death penalty abolitionist clearly reflected his frustration that state legislatures and courts had not effectively remedied arbitrariness in capital cases.  Justice Scalia explained in his Ring concurrence that his vote in Apprendi (and subsequently Blakely) reflected his concerns about legislatures whittling away jury trial protections and his belief that courts needed to step in.

A list of modern Justices who shifted left on criminal justice issues is lengthy: Warren, Blackmun, Stevens, O'Connor (in capital cases), Kennedy (especially in capital cases), Scalia and Thomas (in Sixth Amendment cases).  Meanwhile, I cannot think of a single modern example of a Justice shifting right on criminal justice issues during tenure on the Court.

These realities suggest that the big question looking ahead may not be whether Justices Alito and Roberts might move left on criminal justice issues, but rather just how far left they might migrate.