WASHINGTON—Most of the news coverage down here this week rightfully focused on the revelations before the House Select Committee investigating the events of January 6, 2021. Which was as it should be. The breadth of that scandal became clearer with every hearing, and it has become truly breathtaking.
(Bigger than Watergate? Getting there, I think. In Watergate, the White House chief of staff, the White House domestic policy adviser, the White House counsel, the entire upper echelon of the president’s political fundraising apparatus, and the Attorney General of the United States all went to jail. Of course, I’ve been saying for decades that Iran-Contra was bigger than Watergate, so what do I know?)
However, just up the street, the Supreme Court had itself quite a week. It took a wrecking ball to the Establishment Clause of the Constitution, lit the gun-control laws of several states on fire, and determined that the requirements under the 1966 case of Miranda v. Arizona, the ones we all memorized when Joe Friday used to recite them every week on Dragnet, were merely suggestions. As Justice Sam Alito explained in his majority opinion in Vega v. Tech, the Miranda requirements are merely a “prophylactic rule.” This means that they have no basis in the Constitution but are simply court-created devices through which Fifth Amendment rights against self-incrimination can be vouchsafed. And, as Alito makes quite clear in his opinion, what the courts created, the courts can destroy.
Alito is obviously slavering to do this as quickly as he can, and Miranda isn’t the only potential target. In a valuable essay at Balls & Strikes, appellate attorney Hannah Mullen tries to measure how close we are to going over the cliff.
It gets worse still. The footnote implies that several other foundational “prophylactic” criminal procedure rules might also be ripe for overruling. To do so, Alito cites a series of law review articles that analyze and critique these “prophylactic” rules. Some cases are perhaps less familiar than Miranda: United States v. Pearce, for example, held that in order to ensure that vindictive prosecutors do not retaliate against a defendant who successfully appealed his first conviction, any sentence imposed on retrial that is harsher than the original must be clearly explained in the record, and based upon the defendant’s conduct since the first conviction. Another article suggests that United States v. Wade, which held that the Sixth Amendment right to counsel applies during post-indictment lineups, is also a “prophylactic” rule.
The court giveth, the court enthusiastically taketh away.
More alarmingly, one of the articles identifies Mapp v. Ohio, the famous Fourth Amendment case that established the exclusionary rule—holding that evidence obtained illegally cannot be introduced against a defendant at trial—as a prophylactic-rule case. The cited article, Constitutional Common Law by Professor Henry Monaghan, argues that Mapp is neither “part and parcel of the underlying Fourth Amendment right nor a necessary remedy for it.”
In her essay, Mullen shines a light on one of the most successful strategies employed by movement conservatism in its long march to control the federal judiciary, and how Alito’s treatment of the Miranda requirements is a perfect example of this strategy. You admit that citizens have certain rights guaranteed by previous Supreme Court decisions, but then, brick by brick, decision by decision, you make it impossible in real life for them to exercise these rights. For example, the Vega decision that Alito delivered this past week in essence says that you still have your Miranda rights, but, if the cops violate them, you pretty much have no remedy at law anymore. In her dissent, Justice Elena Kagan could see a church by daylight:
Today, the Court strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda. The majority observes that defendants may still seek ‘the suppression at trial of statements obtained’ in violation of Miranda’s procedures. But sometimes, such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? The point of § 1983 is to provide such redress—because a remedy ‘is a vital component of any scheme for vindicating cherished constitutional guarantees.’ The majority here, as elsewhere, injures the right by denying the remedy.
This kind of thing is textualism run amok. It is akin to Justice Thomas in the Bruen case saying that the case for gun regulations in 2022 has to be based on the conditions that existed in 1789—or, if you insist, in 1868, as though there were no difference between flintlock, a carbine, and an AR-15. If Miranda can be rendered a mere suggestion, all the other decisions protecting the rights of the accused are in peril as well. Man, as Jack McCoy once put it on Law and Order, has only those rights he can defend.
Civil liberties had a nice run there for a while. All of them were robustly defended, but also reasonably circumscribed within very generous limits. Then came the law-and-order 1970s, and the Drug War 1980s, and the triangulated neoliberal experiments of the 1990s, and the War on Terror Aughts, and suddenly, except for a hyper-energized Second Amendment, civil liberties found their sphere of operation had shrunk around them. Because this is America, and this is how we do things, minority citizens felt the constriction of their rights before anyone else did. And slowly, the Supreme Court joined the overall effort. The Warren Court faded into history, and so did its rulings that had caused so much consternation among the law-enforcement classes. In a 1959 article for the Maryland Law Review, J. Patrick White noted that the Warren Court’s landmark civil-liberties decisions came hard after its landmark decisions regarding racial desegregation, and that the latter fed into the former.
Especially since 1956 the Supreme Court has evidenced a particular concern to uphold civil liberties threatened by Congressional, executive, and state interference. The Court's protective role in this sensitive area has provoked the wrath of powerful elements which cannot be, as is the case with the critics of desegregation, easily classified along sectional lines. Rather, a cross-section of conservatives, such as ex-Senators Bricker of Ohio and Knowland of California, and Senators Bridges of New Hampshire and Butler of Maryland - men who believe that practical considerations of national security at times outweigh theoretical conceptions of liberty - have combined to assail the Court. Similarly, militant anti-communists, such as ex-Senator Jenner of Indiana, the late Senator McCarthy of Wisconsin, and Representative Walter of Pennsylvania - men who allege that too strict an adherence to constitutional guarantees only furthers the purpose of the communist conspiracy - have been highly vocal in condemning the Court. Groups sensitive to the relative decline in importance of the states in our federal system have likewise been antagonized, not only by the Warren Court's determination to chop down state laws which compromise civil rights, but also by its tendency to bar state action altogether in areas where Congress has chosen to legislate.
Southern Congressmen, having failed in their initial effort to mobilize anti-court sentiment with desegregation as the issue, were quick to perceive that their basic purpose of discrediting the Supreme Court would be served whether the issue was undue concern for civil liberties or softness to communism or states' rights. They simply shifted their ground and joined with fresh vigor in the new attack on the Court.
We are deep in a similar period of reaction today. Racial retrenchment coupled with demands for expansive police powers have combined with a Supreme Court harboring a disrespect for precedent that is, well, unprecedented. It will overrule when it can, but it prefers to whittle away, apparently believing that it can put things over on the public regarding its most unpopular ideological rulings.
For example, in 2018, the Supreme Court let stand an Ohio program of voter-purging on the grounds that the state had sent letters to people who had moved instead of purging them automatically. (Husted v. Randolph Institute) So, if you couldn’t read English, or your mail just got lost in the shuffle of moving, you could be purged as surely as if your name had been randomly picked off the voting rolls. What the Court did was permit a workaround for a law it did not like, but had no stomach for overturning. The real-world consequences were just as profound, however. And I swear, just as I was writing this, the Supreme Court overturned Roe v. Wade completely and definitively. So they’re getting bolder by the hour.