How the Supreme Court Delivers Fire and Ice to State Criminal Justice

I. IntroductionThe Warren Court left for us an irresistible case study in legal change, particularly for the criminal justice field. Over the years, many people have evaluated the direction of change that the Warren Court wrought in criminal justice. They have asked whether the Warren Court was truly prodefense or whether it carried an exaggerated reputation on this score. Previous accounts of the Warren Court also estimated the amount of change that the Court imposed on police, prosecutors, defense lawyers, and trial judges. These writers debated whether the Warren Court's landmark decisions were consistent with existing case law and whether the Court displayed a judicious willingness to compromise.1I plan to use this same starting point - the amount of change the Warren Court created - but then strike out along a different path. So I begin with this unsurprising proposition: the Warren Court introduced more changes into the criminal justice system than did its predecessors. The Warren Court earned this reputation in its own time, and the image stuck.2This Article then takes an institutional turn by examining the makers of criminal justice rather than the end product. Who carried out the changes that the Warren Court began? How have other legal institutions, particularly state appellate courts and legislatures, responded to the environment of massive change that the Supreme Court created? The questions look past the merits of any particular case that created flux. Instead, I ask more generally about an atmosphere in which major change became the norm.In the generations that followed the Warren Court era, state institutions embraced change.3 The Supreme Court's habit of constantly tinkering with the machinery of criminal justice spread to the state level. State courts and legislative bodies may not always like the changes, but they now anticipate and create change rather than react to it. This result is one of the major institutional legacies of the Warren Court in the criminal justice field. Thus, the Warren Court was fire: turning a solid situation into a fluid one, creating movement, and causing chemical reactions.4 Since 1969, other institutions have changed their habits to deal with this more fluid world of criminal justice.5The presence of these lively institutions at the state level is an ironic legacy for the Warren Court. The Warren Court is known as an enemy of federalism, and that reputation had some basis in the short run. In the criminal justice area, the thrust of the Court's landmark cases was to centralize, to push state systems toward a more uniform criminal process, a push that tracked the federal system. The Warren Court unified criminal justice by restricting the discretion of police officers operating in the field and of trial judges.6 But the long term effects of the Warren Court's criminal justice decisions left an unexpectedly vibrant federal system. State actors at the higher levels of state government, particularly in the appellate courts and legislative bodies adapted quickly. They turned into reality many parts of the Warren Court's vision that the Court itself only defined in the abstract. What began as movement toward uniformity ended with a profusion of independent actors that continually anticipated and initiated change for themselves.7The Rehnquist Court, on the other hand, is ice. State courts and legislatures now routinely interpret the federal constitution and anticipate ways that it might shift over time.8 They also have discovered their authority to interpret state constitutions to place their own brand of restrictions on government actors.9 Legislative bodies have learned to amend codes in ways that make the federal constitution irrelevant.10 In response to these innovations in state courts and legislatures, the Rehnquist Court's most famous and emblematic decisions have the effect of ice: slowing down and freezing into place what once ran more freely. …