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This Symposium results from two stunning rulings in favor of criminal defendants during October Term 2003: Crawford v. Washington1 and Blakely v. Washington.2 I suggest these rulings must be understood as part of a broader trend concerning the Rehnquist Court. In its last few years, the Rehnquist Court has ruled in a way one would predict a more moderate Court would act. This was especially evident in a series of rulings concerning the death penalty, where the Rehnquist Court overturned death sentences on a number of different grounds.3
I believe that there were three distinct phases of the Court between the time William Rehnquist was elevated to Chief Justice in 1986 to his passing in 2005. The first phase, from 1986 to about 1992, was characterized by great deference to the executive and legislative branches. Rarely during this time did the Court invalidate federal, state, or local laws.4 Instead, the Court frequently proclaimed the need for great judicial deference to the elected branches of government.5
The second phase, from 1992 through about 2002, witnessed a wholesale shift in the Court's philosophy. During this period, the Court was aggressive in invalidating federal statutes and overruling even recent precedents.6 The Court's penchant for striking down federal laws and overturning precedent was perhaps most notable in its federalism decisions limiting the scope of Congress's powers and greatly expanding state sovereign immunity.7
Since 2002, however, the Court has been decidedly more moderate. Two years ago, for example, the Court upheld affirmative action by colleges and universities8 and invalidated a state law prohibiting private consensual sodomy.9 Contrary to the preceding period, every federalism case in the last few years has been resolved in favor of federal power and against states' rights.10 Moreover, many of the most significant cases argued during October Term 2004 were resolved in a way that progressives, not conservatives, would prefer. For example, the Court invalidated the death penalty for crimes committed by juveniles," affirmed the use of eminent domain for economic development,12 and expanded the protections of federal civil rights statutes.13
There seems to be a simple explanation for this final phase of the Rehnquist Court: it was easier to get one vote than two. Especially in controversial areas, Justices Stevens, Souter, Ginsburg, and Breyer frequently...