gh not entirely limited to the criminal process. Governmental discretion in the political process was enlarged a small degree. But the record generally is one of consolidation and maintenance of the doctrines, a refusal to go forward much but also a disinclination to retreat much. Only recently has the Court, in decisional law largely cast in remedial terms, begun to dismantle some of the structure of equal protection constraints on institutions, such as schools, prisons, state hospitals, and the like. Now, we see the beginnings of a sea change in the Court's perspective on legislative and executive remedial action, affecting affirmative action and race conscious steps in the electoral process, with the equal protection clause being used to cabin political discretion.
Criminal law and criminal procedure during the 1960s and 1970s has been doctrinally unstable. The story of the 1960s was largely one of the imposition of constitutional constraint upon federal and state criminal justice systems. Application of the Bill of Rights to the States was but one aspect of this story, as the Court also constructed new teeth for these guarantees. For example, the privilege against self-incrimination was given new and effective meaning by requiring that it be observed at the police interrogation stage and furthermore that criminal suspects be informed of their rights under it. The right was also expanded, as was the Sixth Amendment guarantee of counsel, by requiring the furnishing of counsel or at least the opportunity to consult counsel at
critical stages of the criminal process – interrogation, preliminary hearing, and the like – rather than only at and proximate to trial. An expanded exclusionary rule was applied to keep material obtained in violation of the suspect's search and seizure, self-incrimination, and other rights out of evidence.
In sentencing, substantive as well as procedural guarantees have come in and out of favor. The law of capital punishment, for instance, has followed a course of meandering development, with the Court almost doing away with it and then approving its revival by the States. More recently, awakened legislative interest in the sentencing process, such as providing enhanced sentences for
hate crimes, has faltered on holdings that increasing the maximum sentence for a crime can only be based on facts submitted to a jury, not a judge, and that such facts must be proved beyond a reasonable doubt.
During the last two decades, however, the Court has also redrawn some of these lines. The self-incrimination and right-to-counsel doctrines have been eroded in part (although in no respect has the Court returned to the constitutional jurisprudence prevailing before the 1960s). The exclusionary rule has been cabined and redefined in several limiting ways. Search and seizure doctrine has been revised to enlarge police powers, and the exception for
special needs has allowed such practices as suspicionless, random drug-testing in the workplace and at schools. But, a reformation of the requirements for confronting witnesses at trial has, in some cases, increased the complexity and effectiveness of prosecutions. Further, a realist view of modern criminal process led to a willingness to consider the adequacy of defense counsel beyond representation at trial.
An expansion of the use of habeas corpus powers of the federal courts undergirded the 1960s procedural and substantive development, thus sweeping away many jurisdictional restrictions previously imposed upon the exercise of review of state criminal convictions. Concomitantly with the narrowing of the precedents of the 1950s and 1960s Court, however, came a retraction of federal habeas powers, both by the Court and through federal legislation.
The past decade saw the Court’s most extensive examination of gun rights under the Second Amendment, with five Justices holding that, at a minimum, the amendment constitutionally enshrines an individual’s right to possess an operational handgun in one’s home for self protection. This finding mostly was regarded as unremarkable