First Among Equals (28 page)

Still, the Court was cautious not to carve the specific warnings into constitutional stone. Again and again, the Court throughout its lengthy opinion emphasized the need for adequate “procedural safeguards” to protect the guarantee against compelled self-incrimination. There was no magic in the
Miranda
incantation of rights; to the contrary, the Court invited Congress and state legislatures to come forward with their own protections to ensure the privilege.
Miranda
was not, in short, setting out specific “rights.” It was, more narrowly, setting forth particular safeguards to protect a right: the right not to be compelled to incriminate oneself. The Court was essentially saying, “We'll take the first crack at solving this problem of ‘informal coercion,’ but Congress and state legislatures are welcome to help out.”

Justices Harlan and White dissented. Harlan called
Miranda
nothing less than “a dangerous experimentation at a time of a high crime rate that is a matter of growing concern.” White scolded the majority for its “deep-seated distrust of confessions.” Harlan worried that the Court's doctrine “has no sanction.” White worried what
Miranda’
s impact would be upon the criminal justice system. As White feared,
Miranda
immediately led to the release of a number of admitted murderers.

Police across the country were incredulous. They well understood the importance of confessions in solving crimes and the new difficulties in obtaining confessions that would flow from
Miranda.

In Washington, Senator Sam Ervin of North Carolina proposed to make the pre-
Miranda
voluntariness approach a standard part of the Constitution. Instead, in 1968, a presidential election year that saw Richard Nixon challenging the Warren Court, Congress took up the
Miranda
majority's invitation for legislative bodies to enact laws that would adequately protect the privilege against self-incrimination. In the Crime Control Act of 1968, Congress expressed itself:
Miranda
was not to be the test for determining the admissibility of a confession; instead, a multifactored test would govern. Courts were to consider, for example, the length of time the suspect was subjected to custodial interrogation. This approach was meant to restore the core concept of “voluntariness.”

The Justice Department declined, however, to enforce the statute. The department viewed the 1968 measure as a direct slap at the Court, an effort to “overrule”
Miranda
without explicitly saying so. Even so,
Miranda
remained controversial in jurisdictions throughout the country. And on the Supreme Court. Of all the Nixon appointees, William Rehnquist was especially critical of
Miranda.
In one of his early opinions after joining the Court,
Michigan v. Tucker
(1974), Rehnquist observed that the
Miranda
warnings were “not themselves rights protected by the Constitution.” In that case and subsequent ones throughout the Burger Court years, Rehnquist helped produce majorities willing to fashion exceptions and limitations to
Miranda’
s reach.

Nonetheless, over time
Miranda
was assimilated into the law-enforcement culture. Even more, its famous warnings became part of American culture, making appearances on television shows and movies involving the criminal justice system. Suspects were to be read their
Miranda
rights—and everyone knew what that meant.

Still, the question of
Miranda’
s constitutional legitimacy remained.
Miranda
raised basic questions about the role of the judiciary in American life. Is it properly within the sphere of courts to fashion specific rules, impose those rules on law-enforcement officials, and enforce them with the sanction that confessions or statements given without the benefit of such warnings will be excluded from evidence? Isn't that, at bottom, a job for Congress and state legislatures or other, more accountable, parts of representative government? How can the least accountable branch of government, justices appointed for life, take on a reform project of such magnitude?

The Warren Court had not worried much about these issues. Chief Justice Warren was a man of action, a former governor, state attorney general, and elected district attorney. He wanted results and was less interested in legal doctrine. But later Courts did worry about doctrine, about the legitimacy of their decisions. Congress shouldn't run foreign policy, the president shouldn't refuse to carry out laws passed by Congress, and the Supreme Court shouldn't try to run the country. These issues loomed large as the post-Warren Courts openly emphasized the search for better doctrine.

I saw the dynamic firsthand as a law clerk to Chief Justice Burger. In the mid-1970s, a decade after
Miranda
was handed down by his predecessor, Chief Justice Burger faced a question flowing out of the then relatively new
Miranda rule
: What happens if an individual goes before the grand jury and, without having received
Miranda
warnings, commits perjury? To Burger, the answer was clear. Perjury was never permitted, period (
United States v. Mandujano
, 1976). If the honest answer to a question from a prosecutor or a grand juror would be incriminating, then the witness had two choices: either invoke the Fifth Amendment privilege and remain silent, or answer truthfully. But lying under oath was not an option, even where there had been a failure to warn an individual of his or her rights. A
Miranda
violation, in short, would not excuse perjury before the grand jury. The Court was unanimous.

As the twenty-first century dawned, the Rehnquist Court had a, perfect opportunity to do away with
Miranda
. The issue was this: Had
Miranda
been overruled legislatively by Congress just two years later in the overwhelmingly bipartisan provisions of the 1968 statute? The solicitor general reached the judgment that Congress had unconstitutionally sought to legislate, by statute, a matter that the Court had decided as a question of constitutional law. As a result, the Justice Department, as is its prerogative, refused to defend the statute. The Court therefore appointed a special counsel to argue on behalf of the statute's legality.

The eventual result was foreshadowed during the course of the oral argument in the spring of 2000 as the Rehnquist Court was reconsidering the Warren Court's handiwork. Not one word was said about victims of criminals who gained release by
Miranda’
s application. The social cost of the Warren Court's reform effort was a nontopic during the hour-long, largely academic oral argument. Two months later, the Court, by a staggering 7–2 majority, reembraced
Miranda
. Not only was
Miranda
here to stay, notwithstanding the congressional effort to restore the traditional Fifth Amendment voluntariness approach, but the Court's opinion was written by none other than Chief Justice Rehnquist.

There had been plenty of reason to think Rehnquist was ready to jettison
Miranda.
In the oral argument in the case
Dickerson v. United States,
the chief had appeared skeptical about the pro-
Miranda
position. Dickerson had been convicted of bank robbery and, shortly after his arrest, had made incriminating statements to law-enforcement officers without having been given
Miranda
warnings. On appeal, the Fourth Circuit (based in Richmond) affirmed Dickerson's conviction and concluded that the 1968 statute had supplanted
Miranda.
When Dickerson's lawyer praised
Miranda
as being a clear-cut, predictable rule that was easy for police to apply, the chief was unimpressed: “Well, you say [
Miranda
] provides clear-cut evidence. I looked into the number of cases that we have construing
Miranda,
and there are about 50 of them, so that to say [
Miranda
] is easily applied is just a myth.” Not only, then, was
Miranda
still dubious constitutional law, in the chief's mind, it also had not lived up to its supposed promise of certainty and clarity. Someone who had seen the oral argument surely might have thought that if the chief were announcing the opinion of the Court in
Dickerson,
it would come down against
Miranda.
Surely the Court would conclude that Congress has authority to change a nonconstitutional rule. That in fact had been the theme struck hard by Justice Scalia at the April 2000 argument. Congress couldn't overrule the Court in determining the meaning of the Constitution, but it could override a particular judicial convention aimed at serving or vindicating a right protected by the Constitution.

Chief Justice Warren had read his
Miranda
opinion from the bench. Chief Justice Rehnquist did the same in
Dickerson.
He began by stating the
Miranda
warnings themselves. “You have the right to remain silent….”

Courtroom watchers were caught off balance.
Miranda
had not been overruled. Not only had it survived, it now had a new gloss.
Miranda
was, the chief said, a constitutional rule after all. How else, the chief emphasized, could we have applied the rule to the states? The Court would have been powerless to impose a mere procedural rule on the states unless the rule was constitutionally based.

The result was unexpected, as was the 7–2 margin. Justice Scalia, who was joined by Justice Thomas in dissent, wrote powerfully. He began his dissenting opinion ominously: “Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of
Miranda
, but a radical revision of the most significant element of
Miranda
(as of all cases): the rationale that gives it a permanent place in our jurisprudence.” Others, who cared only about results, would warmly embrace the decision, Justice Scalia predicted. “Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule
Miranda
.” He took the sweeping but short opinion of Chief Justice Rehnquist severely to task. The opinion says nothing, Justice Scalia noted, to the effect that Congress's re-imposition of the voluntariness test is unconstitutional.

Justice Scalia then called the roll of the justices. He noted that “justices whose votes are needed to compose today's majority are on record as believing that a violation of
Miranda
is
not
a violation of the Constitution.” He seemed to relish ticking off the names, beginning with Justice Anthony Kennedy, going on to Justice Sandra Day O'Connor, and then closing with Chief Justice Rehnquist himself. Scalia taunted the three justices who he plainly believed should have shared common cause with the two dissenters. The three justices whose shift created the new majority would not forthrightly say that “custodial interrogation that is not preceded by
Miranda
warnings or their equivalent violates the Constitution of the United States.” Why not? Because the moderates, now joined by the chief justice, were agnostics on the subject. “[The Court] cannot say that, because a majority of the Court does not believe it.” That being so, Justice Scalia concluded, it was the Court that violated the Constitution by failing to give effect to a statute passed by Congress and signed into law by the president. These were strong words, praised for their rhetorical power by Pulitzer Prize–winning columnist Charles Krauthammer: “Some people have John Grisham. Others Tom Clancy. Not me. For sheer power, stiletto prose and verbal savagery, I'll take Antonin Scalia.”

What was the Court doing? How could it overrule a statute that embodied an indisputable constitutional principle: that voluntary confessions should be admitted in federal court cases? Certainly, the statute from 1968 was, as Utah law professor Paul Cassell put it, a statute that time forgot. But the statute commanded respect unless it violated the Constitution. To many, the 1968 law represented “an act of defiance by the Congress, ridiculing the Court, an unbelievable hostility to the Court,” as Michigan law professor Yale Kamisar wrote. But what if the Court had actually usurped the role of the democratic branches of government? Krauthammer posed the issue this way: “Was the
Dickerson
result of re-embracing
Miranda
… arbitrary, willful judge-made law?” It looked like exactly that.

Feelings were running high, almost as high as those in the abortion and religion cases—and as those to come in
Bush v. Gore
. Three justices often in agreement with Scalia and Thomas had broken ranks and embraced a Warren Court icon.

There are two explanations for what happened, and each reveals an important characteristic of the Court and its work. The first is that there is on the Court a deep and abiding respect for maintaining the status of decisions that have caught the public's attention and imagination. The Court had been permitted, year after year, to refine the
Miranda
rule. It had left the decision on the books, and indeed enforced it, but the Court had also crafted numerous exceptions to
Miranda
. The reigning philosophy seemed to be this:
Miranda’
s core should be left, but a majority may nibble at it around the edges. The Court would not expand the decision beyond its basic holding. Throughout these years, too, Congress had sat silently, saying nothing as the Court proceeded in this limiting, moderating fashion. In the meantime, Miranda had become part of American culture. The
political
controversy over it had long since abated, replaced by
Roe v. Wade
, and it stood as a constitutional monument erected entirely by the Court. When the assault finally came on the core of
Miranda
itself, the Court proved unwilling to yield to the logic of its own position. Stability when public opinion is genuinely engaged once again proved to be one of the Court's highest values.

The second explanation lies in the Court's view of Congress as an institution largely driven by passing majoritarian sentiments, especially sentiments passionately held by a transient popular majority. The Court doubtless saw the Congress of 1968 as responding to the law-and-order sentiment of an election year. That explained why Congress wrote the anti-
Miranda
rule. But three decades had gone by and nothing else had happened. Federal law enforcement, despite its early objections to
Miranda
, was never anxious to use the 1968 law. Among other reasons, the FBI had long used similar warnings, even prior to
Miranda
, and concerns were raised by agency lawyers as to the constitutionality of the 1968 law. During the Clinton administration, when the issue finally was presented, Attorney General Reno had taken the extraordinary step of directing federal prosecutors around the country not to employ the statute.