This essay – written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” – is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities. Readers undoubtedly can come up with more than three styles. But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism."
Daniel C. Richman,
Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes,
Néo ou Rétro Constitutionnalismes? (R)évolutions des Démocraties Constitutionnelles (1989-2015), Olivier Cayla & Jean Louis Halpérin, Eds., Mare & Martin, 2019; Columbia Public Law Research Paper No. 14-425
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1884