10 - Patrolling the Fenceline: How the Court Only Sometimes Cares about Preserving Its Role in Criminal Cases

Summary

Introduction

One of Bill Stuntz's many contributions to the legal academy is that he helped bring doctrinal scholarship back into fashion. Not doctrinal work in the narrow sense of describing the evolution of legal rules, but in a richer, more sweeping sense of identifying the larger themes that help explain the forces that shape the inputs and outflow of judicial decisions. Whether he was describing how societal forces such as race and poverty affect the criminal process or discussing the role of institutional actors like police or defense counsel, Bill managed to offer penetrating theoretical insights without forgetting that cases matter, facts matter, and that sometimes, law is simply “what judges do.”

In this spirit, if we look back over the past decade of Supreme Court case law on criminal procedure, some important themes emerge. This chapter discusses two of those themes and offers an argument that, regardless of the correctness of particular case outcomes, the Court has gone off course in two important areas.