I suppose that one thing that distinguishes progressives coming of age during the Rehnquist court from those coming out of the Warren (and to a lesser degree Burger) eras is that the Rehnquist Left - if such a thing exists - sees legislatures as at least as likely a site for progressive legal change as the courts. I suppose process-oriented conservatives can claim a victory here; people, like me, who worry about race and criminal law, now see democratic change as the most effective and durable path for change. In that sense, the Obama candidacy is a real litmus test. Although one can never be sure of his ultimate policy preferences, it appears that Obama may be the first criminal justice progressive heading up a major party ticket in over a generation.
There is already definite good news, however, because there is evidence of some fresh activity at the state level. Doug Berman reports today that Iowa has just adopted a new law requiring the state to examine the racial and ethnic impact of all new sentencing laws before passage. Governor Chet Culver's website has more info here. This follows release of a report last July by the Sentencing Project showing that Iowa incarcerates African-American offenders at a rate 13 times higher than whites (and twice the national average.) Their research is consistent with my own findings in the discrete area of Megan's Law. In Silence and the Racial Dimension of Megan's Law, I showed that Iowa and several other similar midwestern states had significant overrepresentation of African-Americans among those subject to both registration and community notification. (This overrepresentation was substantially more noticeable in the midwest than, say, the deep south - evidence that race is every bit as much of an issue in the north as in the south.)
For those of us who fear that courts are neither a likely, or a durable, source of policy improvement, this new development in Iowa is great news. It sounds like sorts of proposals for change that many of us have begun to embed in our law review articles: a way to make democracy work better.