Is the High Court ‘Countermajoritarian?’ Not so much, CJI speaker says

Prof. Corinna Barrett Lain

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Landmark decisions by the U.S. Supreme Court sometimes seem to fly in the face of the will of the American people.  Some critics claim the jurists defy the commonly accepted tenor of the times and rule with a sense of "counter-majoritariness." Not so fast, a University of Richmond law professor told Law Center students. Scratch beneath the surface and – at least in the major decisions she has scrutinized – the court actually marched in step with American sentiment.

“I’m not saying that the court is holding its finger in the air to see which way the wind is blowing,” said Prof. Corinna Barrett Lain.  But in her view, the court is “very attuned” to societal undercurrents.

Her presentation – “Our Not So Countermajoritarian Difficulty (And an Upside-Down Theory of Judicial Review)” –was hosted by the Law Center’s Criminal Justice Institute as part of its Leading Voices Lecture Series.

Lain focused on two criminal decisions: one credited for its lasting effect on the criminal justice system, and the other serving only as a stopgap measure in an issue that remains controversial today.

The case with the lasting effect – the so-called Miranda ruling of 1966 – is generally considered the most “counter-majoritarian” decision in the history of the Supreme Court, she said. At the time, only three states required a warning to suspects and 26 other states had petitioned the court to leave well enough alone. Public opinion polls showed the public was 2-1 against the decision and Richard Nixon railed against it in stump speeches during his run for the 1968 presidential nomination. The court, he proclaimed, had taken the law from the hands of the people and given it to the criminals. Most people misunderstood the ruling, Lain said, thinking it required a taxpayer -supplied lawyer for every suspect who asked for one. In reality, the court simply declared that law enforcement officials could not question a suspect without a lawyer unless the suspect waived his rights to counsel and silence.

Far from being beyond the realm of majority opinion, Lain said, the decision actually was quite conservative compared to what some groups were calling for at the time. Some mainstream, conservative groups were asking that interrogations be taped and limited to no more than four hours. The decision, she said, was likely a reaction to the civil rights movement. Television brought the hate and brutality of racial intolerance into America’s living rooms from places like Birmingham and Selma, Alabama. Club-wielding police officers used tear gas, dogs and hoses to disperse peaceful demonstrators. “Nobody trusted the police,” Lain said.  A Time magazine cover story in 1966 decried how the poor and uneducated were unaware of their constitutional rights – and nobody was telling them. Newspaper headlines at the time said police favored the ruling, believing the warning would actually have little impact on their ability to get suspects to talk. And, in one poll that accurately explained the decision, the public overwhelmingly approved it, Lain said.

Putting the Miranda decision in short-term historical context shows just how public sentiment affects court judgments, she said.  In 1966, crime didn’t even crack the Top 10 list of public concerns.  A mere two years later, in 1968, after racial riots in major cities and political assassinations, crime was the No. 1 issue in the country.   “I don’t know that the court would have given us Miranda in 1968,” Lain said.

The second case Lain explored was 1972’s Furman v. Georgia in which the court found the death penalty “arbitrary and inconsistent” and struck down 39 capital punishment laws, effectively shutting down death sentences until another court ruling in 1976. The Furman decision came at the peak of Nixonian “law and order, get tough on crime” sentiment. But a deeper look finds the court was, in fact, “majoritarian” in its thinking, she said. Executions had nearly ground to a halt in the early ‘70s and six states had abolished the death penalty. Many states had death penalty laws that were rarely, if ever, invoked. Fewer than half of those polled at the time supported the death penalty; Democrats had a plank in their 1972 party platform calling for its abolishment; and even in the deep South, an Alabama court, in effect, had ruled out the death penalty. Newspapers, magazines and court observers agreed the death penalty was on its way out. Rather than the high court being “counter-majoritarian,” Lain said, something else was afoot.  In Lain’s view, it was the nation’s legislators who were out of sync with the American public, not the U.S.  Supreme Court. 

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The next speaker in the CJI lecture series will be Prof.Deborah W. Denno of Fordham University School of Law on March 29. Her topic is: How the Law Thinks: Why Outmoded Views of Mental State Affect Our Ability to be Just.   Her talk, which is free and open to all, is scheduled to begin at 2:30 p.m. in the Hendricks Heritage Room. 

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