This is the sixth and final in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

When it comes to the constitutional rights of criminal defendants at the Supreme Court, the conventional story of the past half-century goes something like this: Responding to the embarrassing state of criminal justice in the American South in the civil rights era, the activist Warren Court led a revolution in defendants’ rights.  The Court held that most of the basic Bill of Rights protections applied to the states, liberally construed the scope of those rights, and adopted new exclusionary rules to enforce the rights.  The activism of the Warren Court provoked a popular backlash, however, and a series of Republican presidents succeeded in moving the Court to the right.  The Court’s hard-core conservatives  have pushed aggressively to overturn landmark Warren Court precedents, while the more moderate conservatives have charted an unpredictable path, caught between their skepticism of the Warren Court agenda and their reluctance to overturn established precedent.  Meanwhile, the liberals have been on the defensive for a generation, able to do little more than occasionally preserve the gains of an earlier era.

What is one to make, then, of the twin Sixth Amendment revolutions of the past decade? 

Against all expectations, two of the Court’s hard-core conservatives (Scalia and Thomas) joined with a subset of its liberals to expand the Sixth Amendment rights to a jury trial and to confront accusers.  Both revolutions overturned settled law and opened many new avenues for defendants to challenge their convictions and sentences. 

But now there are good reasons to wonder whether the revolutions are over. 

This is the fifth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

You can tell there are no Wisconsinites currently on the Supreme Court — otherwise, the Justices would not treat “badger” as such a bad word.  In an earlier post, I discussed the Court’s marked left-right divide last term in its cases dealing with police investigation practices.  To my mind, the most interesting of these cases was Montejo v. Louisiana, 129 S. Ct. 2079 (2009), which nicely exemplifies the competing views of defendants’ rights on the Court. 

In Montejo, the Court substantially weakened the Sixth Amendment right to counsel by overturning Michigan v. Jackson, 475 U.S. 625 (1986).  Jackson had prohibited police from initiating the interrogation of a criminal defendant once the defendant had requested counsel at an arraignment. 

Why did the Court think Jackson unnecessary?  The answer lies in the Court’s concern with “badgering.”