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6 - Judicial Hesitancy and Majoritarianism

from Part II - The Landscape of Eighth Amendment Doctrine

Published online by Cambridge University Press:  03 June 2020

By
William W. Berry
Edited by
Meghan J. Ryan  and
William W. Berry III
Meghan J. Ryan
Affiliation:
Southern Methodist University, Texas
William W. Berry III
Affiliation:
University of Mississippi
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Summary

The story of the Supreme Court’s Eighth Amendment jurisprudence has been one of judicial hesitancy and restraint. This chapter explores the reluctance of the Supreme Court Justices to apply their normative views to develop a clear constitutional line that limits excessive punishment practices. It then explains why the majoritarian principles of the evolving standards of decency doctrine make this judicial reluctance less warranted. The chapter concludes by exploring the possible consequences of the Court abandoning its hesitant posture and infusing the Eighth Amendment with normative values and limits on state and federal punishment practices.

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The Eighth Amendment and Its Future in a New Age of Punishment , pp. 89 - 100
Publisher: Cambridge University Press
Print publication year: 2020

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