January 8, 2010
To readers for the January 20th Judicial Behavior workshop –
Enclosed please find my paper on stealth overruling and Miranda. As the old saw has it,
if I’d had more time I’d have written you a shorter paper; my apologies. I will point out
the footnotes are under construction and in fact need considerable trimming, so much of
the length is there. If you keep your eyes above the line you should be fine. I think
(hope) it is a fast read.
Assuming you are pressed for time, I can offer a guess about what will or won’t be
germane for this workshop’s purposes. Part I describes the phenomenon of stealth
overruling, and tries to give a definition. It is more jurisprudential than behavioral, but I
think sets the stage. The long Part II explains the stealth overruling of Miranda, and may
not matter at all for present purposes. Part III offers up arguments for why judges might
stealth overrule, and Part IV describes the costs of stealth overruling. My guess is that
Parts III and IV are most in line with the workshop’s interests, though I won’t purport to
speak for the conveners. I’m happy to discuss anything, and glad for any help you can
give me with any of it!
As you will see, I think the phrase stealth overruling is not apt, and have settled on stealth
‘overruling’. But the scare quotes are awkward. I need something catchy and I’d
welcome any suggestions.
I appreciate your having me at the workshop and look forward to meeting with you.
Happy New Year,
Barry Friedman
THE WAGES OF STEALTH “OVERRULING”
(WITH PARTICULAR ATTENTION TO MIRANDA V. ARIZONA)
INTRODUCTION
In the spring of 2004, in twinned cases, the Supreme Court overruled Miranda v.
Arizona. Miranda was the 1966 decision holding (as everyone surely knows) that no
statement obtained by police interrogation of a suspect in custody can be admitted into
evidence if certain warnings had not been given to the suspect. In Missouri v. Siebert,
the Court decided that despite initial hopes that Miranda would provide “bright line”
guidance to police officers, the rule itself had proven “not to be administrable,” and that
its continued maintenance was “inconsistent” with the body of precedent that had grown
around it. In United States v. Patane, the Court concluded that the cost of applying the
exclusionary remedy to unwarned police confessions was “simply too great,”
particularly given Miranda’s shaky constitutional status. The Court’s rulings spelled a
return to the long-standing “voluntariness” analysis, pursuant to which only involuntary
or coerced statements of criminal suspects would be held in violation of the Constitution
and inadmissible. In both cases the Court made clear that police departments could
choose to read suspects the warnings if they wished, and emphasized that recording of
suspects’ statements remained an option, just as it had after Miranda. But, the majority
justices held, the Constitution had nothing to say about any of this.
The reaction to the overruling of Miranda may not have been precisely what the
Justices anticipated or bargained for. It turned out the Miranda decision was an icon, a
firmament in the constitutional canon – or at least that was what the public thought.
There were angry editorials, discussions on Sunday morning talk shows, and anxious
statements from academics and politicians about the fidelity of the Roberts Court to
principles of stare decisis, which had played prominently in the confirmation hearings of
both the Chief Justice and Justice Samuel Alito. When, during the 2006 Term, the Court
overruled four additional precedents – among them Flast v. Cohen and Federal Election
Commission v. Wisconsin Right to Life, the judiciary committees of both houses of the
Democratic Party-controlled Congress commenced hearings into whether the Justices
were fulfilling their constitutional responsibilities properly. Chastened Justices assured
Members of Congress they did indeed respect stare decisis, and the Roberts Court took
its oft-noted turn to the left.
Those two paragraphs are fiction, of course. The principal opinions in these cases
not only did not claim to overrule prior precedents; in some cases they specifically denied
it. Rather, the decisions were portrayed as faithful applications of governing precedent,
well within the proper bounds of interpretation. And though there was some public
1
reaction to these decisions, it was barely a blip on the historical Supreme Court
seismograph.
Still, the many critics of these decisions – and they were in fact anxious – claimed
that overrulings had in fact occurred, but by “stealth.” 1 In this they were joined by
justices of the high court itself. 2 Underscoring the fact that something out of the ordinary
was in fact happening, in some of these cases both the dissenting and concurring justices
united in accusing the authors of the principal decision of acting disingenuously, of
effectively overruling sub silentio what they would not overturn explicitly.
The issue this presents – and the one taken up here – is what to make of these
claims of stealth overruling? After all, precedents are notoriously slippery creatures,
especially when cases implicating them are adjudicated in the Supreme Court. One
person’s stealth overruling might well be another’s minimalism. Rather than criticizing,
perhaps we should applaud the decision to not overrule explicitly, and to resolve a case
by drawing fine distinctions from existing precedents.
This Article explains that it was, strictly speaking, imprecise for commentators to
claim the Court was overruling its past decisions, and that their real ground for complaint
was that the justices in the 2006 principal opinions engaged in the particularly
disingenuous treatment of prior precedents, in a way apparently designed to obscure the
magnitude of what the Court was doing. This sort of conduct – which the article refers to
1
See, e.g., Ronald Dworkin, The Supreme Court Phalanx, N.Y. Rev. of Books, Sept. 27, 2007, at 92
[hereinafter Dworkin, Supreme Court Phalanx] (accusing Justices Scalia and Alito of “remaking
constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations
of past justices, conservative as well as liberal, had constructed”); Geoffrey R. Stone, The Roberts Court,
Stare Decisis, and the Future of Constitutional Law, 82 Tul. L. Rev. 1533, 1538 (2008) (accusing Alito and
Scalia of “purport[ing] to respect a precedent while in fact cynically interpreting it into oblivion”).
2
See, e.g., Hein v. Freedom from Religion Foundation, 551 U.S. 587 , 637(2007) (Souter, J., dissenting)
(saying that the plurality’s distinction of Flast has “no basis…in either logic or precedent”); FEC v.
Wisconsin Right to Life, 551 U.S. 449, 499 n.7 (2007) (Scalia, J., dissenting) (calling the principal
opinion’s reasoning “unpersuasive”).
2
as “stealth ‘overruling’” – is hardly unique to the Roberts Court. Similar accusations
have been leveled at the decisions of the Supreme Court at other times in history. Yet, as
this Article demonstrates, there are serious grounds to be concerned about the practice. It
confuses existing doctrine, making it difficult for officials and lower court to decide like
cases alike, thereby threatening the rule of law. Worse yet, it breeds cynical defiance by
those officials of precedents, in the long term undermining the Court’s own legitimacy.
And perhaps most consequentially, it makes it difficult if not impossible for the public to
monitor what the Court is doing to constitutional law, eliminating one of the critical links
that sustains the practice of judicial review. Consider what the public reaction would
have been if all the legal change described in the first italicized paragraphs had happened
explicitly, rather than by stealth.
This is precisely the right time to take up the question of stealth overruling,
because we now have the data necessary to assess it. In the wake of the 2006 Term,
much was said about what the Court was doing, and little about its impact. This Term,
ironically, the Court has returned to the terrain of its past stealth overrulings, [and it
remains to be seen what the Justices are going to do]. But some temporal distance allows
us to assess the effects of stealth overruling in the lower courts, on public officials, and
among the general public.
For that very reason, the primary focus here is on the Court’s treatment of its
iconic precedent Miranda v. Arizona. 3 The Court’s treatment of Miranda received less
high-visibility attention than the 2006 cases, no doubt precisely because the stealth nature
of that treatment was so acute. This remains the case despite the Court’s hearing a
remarkable three Miranda cases this Term, all with some likelihood of rending further the
3
384 U.S. 436 (1966).
3
fabric of the rule. 4 Miranda thus provides the ideal place in which to assess the wages of
stealth “overruling.” Since the 2004 decisions in Siebert and Patane, the tangible costs of
the Court’s stealth strategy have become increasingly apparent.
Part I of this article examines what it was that so bothered commentators
regarding the 2006 Term of the Supreme Court, seeking to define that conduct with
greater precision. It was not the actual overruling of precedents, which did not in fact
happen in many of those cases. Rather, it was what might be called “overruling,” [would
love a better phrase] – the deeply disingenuous treatment of prior precedents in a manner
that obscured fundamental change in the law. “Overruling” occurs when the justices
signing on to an opinion are aware that the distinctions being drawn with prior precedents
are deeply strained and thus cannot be said to justify their decision, or when the decision
effectively reduces the prior precedent to its facts. And the “overruling” is by “stealth”
when the Justices take the action they do precisely to avoid the consequences of
publicity. The test is thus a subjective one, and it concededly will be difficult to say with
certainty whether stealth “overruling” occurred in any given case. However, in many
situations such as this the law often resorts to a more objective “reasonable person” sort
of test, and by that standard stealth “overruling” occurred in at least some of the 2006
decisions that attracted attention.
Part II turns to an examination of the Supreme Court’s treatment of its decision in
Miranda v. Arizona. Part II shows that Miranda has in fact been stealth “overruled” over
4
Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), cert. granted, 130 S.Ct. 48 (2009) (No. 08-1470)
(asking what rule applies when a suspect understands the Miranda warnings but remains largely silent,
without waiving or invoking his rights); Maryland v. Shatzer, 405 Md. 585 (2008), cert. granted 129 S.Ct.
1043 (2009) (No. 08-680) (raising the issue of how long invoking the right to counsel protects a defendant
from police-initiated interrogation); Powell v. Florida, 998 So.2d 531 (2008), cert. granted, 129 S.Ct. 2827
(2009) (No. 08-1175) (addressing how specific the warning of right to counsel must be).
4
the course of a number of recent cases. It underscores the point by explaining that
Miranda arguably was ripe for explicit judicial overruling.
Part III examines the apologia for stealth “overruling,” finding it wanting. The
practice might be justified either as a completely admirable exercise in gradualism, or
nonetheless as the unavoidable consequence of collegial decisionmaking on a multimember court. Part III demonstrates that neither of these explanations holds up: stealth
“overruling” shares none of the supposed virtues of minimalism; moreover, any justice
engaging in such conduct could simply vote to overrule explicitly. Part III concludes by
arguing that stealth “overruling” occurs to avoid the publicity attendant explicit
overruling. It makes the case by pointing to circumstantial evidence strongly suggestive
of the fact that Miranda has been stealth “overruling” precisely to avoid publicity.
Part IV then examines the substantial costs involved in stealth “overruling,” using
Miranda as a working exemplar.
Section A demonstrates how stealth “overruling”
imposes costs by muddying the law. When the Supreme Court says one thing and does
another, confusion is the inevitable result. Even those officials and courts that would
choose to follow Supreme Court dictates cannot be sure what they are being asked to do.
Section B then documents a more insidious trend: stealth “overruling” has encouraged
government officials to disregard the natural implications of a Supreme Court decision in
the hope that a shifting Court majority will vindicate their contrarian practices. By
entertaining this sort of defiance, the justices experience short-term gains on matters of
policy, but in the long-term engender a culture of skepticism about the entire endeavor of
constitutional adjudication among those upon whom they depend the most – officials
charged with implementing their decrees. But it is Section C that elaborates upon the
5
most problematic aspect of stealth “overruling,” its intentional shielding from public
scrutiny of the Court’s constitutional rulings. The Section emphasizes the point by
focusing not only on Miranda but also on another prominent example of stealth
“overruling,” the supposed re-affirmance of Roe v. Wade in Planned Parenthood v.
Casey.
II.
STEALTH “OVERRULING” – THE PHENOMENON AND A WORKING DEFINITION
Commentators on the Supreme Court’s October Term 2006 accused the justices
engaged in overruling by stealth in as many as seven cases. 5 In Gonzales v. Carhart, the
Court upheld congressional legislation banning what is known in political lingo as
“partial birth abortion,” although markedly similar legislation had been struck down in
Sternberg v. Carhart just six years earlier. 6
In Federal Election Commission v.
Wisconsin Right to Life, the Court accepted an as-applied challenge to the
constitutionality of a critical section of the Bipartisan Campaign Reform Act that in effect
doomed the section, despite rejecting a facial challenge to the very same provision in the
2003 decision McConnell v. Federal Election Commission. 7 Hein v. Freedom from
Religion Foundation involved the question of whether taxpayers had standing to
5
In a strongly-worded article in the New York Review of Books, Ronald Dworkin accused the justices of
“remaking constitutional law by overruling, most often by stealth.” Dworkin, Supreme Court Phalanx,
supra note ___, at 92. He condemned the “revolutionary character and poor legal quality” of the decisions.
Writing on the Washington Post’s op-ed page, the columnist E.J. Dionne accused the Court in WRTL of
having “pretended to follow the earlier ruling while ripping its guts out.” E.J. Dionne, Not One More
Roberts or Alito, Washington Post, June 29, 2007, at A21. Some members of Congress, which recently had
confirmed both the Chief Justice and Justice Alito, having heard much from them during their confirmation
hearings about the important of stare decisis, expressed the view they had been bilked. See Senator Charles
E. Schumer, Keynote Address before the Fifth Annual American Constitution Society Annual Convention
(July 27, 2007), available at http://acslaw.org/pdf/Schumer%20speech.pdf; 153 Cong. Rec. S4653-01
(daily ed. Apr. 18, 2007); (statement of Sen. Feinstein) (quoting the Justices’ pre-confirmation affirmations
of respect for stare decisis, and accusing them of ignoring precedent).
6
Gonzales, 550 U.S. 124; Sternberg, 530 U.S. 914.
7
Wis. Right to Life, 551 U.S. at 526 (Souter, J., dissenting) (noting that the principal opinion “simply
inverts what we said in McConnell”); compare McConnell, 540 U.S. at 246 (upholding provision).
6
challenge the executive branch’s use of federal funds to pursue “faith-based initiatives.” 8
Flast v. Cohen would have suggested the answer was yes; the Court held no,
distinguishing executive from legislative action. 9 In the 2003 Term case of Grutter v.
Bollinger, the Court held that “diversity” was a compelling state interest to justify certain
race-conscious admissions rules for undergraduate or post-graduate admissions, but in
Parents Involved in Community Schools v. Seattle Schools District No. 1 the Justices
struck down such measures in primary and secondary education. 10 In Morse v. Frederick
the Justices upheld the suspension of a student for unfurling a banner that read BONG
HiTS 4 JESUS, despite the broad protections accorded student speech in Tinker v. Des
Moines Independent Community School Dist. 11 There were similar claims about United
Haulers, a dormant commerce case, and Bowles v. Russell, involving the time limits for
habeas appeals. 12
Critical commentary was fed by similar complaints of stealth overruling from the
justices’ own colleagues. One person’s paste is another’s porridge; the merit of any
8
551 U.S. 587 (2007).
See Flast, 392 U.S. at 102 (defining the issue presented as “the standing of individuals who assert only the
status of federal taxpayers and who challenge the constitutionality of a federal spending program”)
(emphasis added); Hein, 551 U.S. at 618 (Scalia, J., dissenting) (arguing that, unless Flast is overruled, that
case “should be applied to …all challenges to the governmental expenditure of general tax revenues in a
manner alleged to violate a constitutional provision specifically limiting the taxing and spending power”);
id. at 637 (Souter, J., dissenting) (saying that the plurality’s distinction of Flast has “no basis…in either
logic or precedent”).
10
See Grutter, 539 U.S. at 326 (holding that diversity is a compelling state interest in university
admissions); Parents Involved, 551 U.S. at 724 (distinguishing Grutter as reliant upon “considerations
unique to institutions of higher education”).
11
Tinker, 393 U.S. 503; compare Morse, 551 U.S. at 437 (Stevens, J., dissenting) (accusing the Court of
“trivializ[ing] the two cardinal principles upon which Tinker rests”). Admittedly, given prior exceptions,
Tinker itself was starting to look like a piece of swiss cheese. See Hazelwood 484 U.S. 260 (permitting
schools to regulate some school-sponsored expression); Fraser, 478 U.S. 675 (permitting regulation of
student speech when “rationally related to legitimate pedagogical concerns”).
12
Bowles, 551 U.S. 205; United Haulers, 550 U.S. 330. For discussions of stealth overruling in Bowles,
see Bowles, 551 U.S. at 220 (Souter, J., dissenting) (accusing the Court of “refusal to come to grips” with
precedent); Dodson, Jurisdictionality, supra note ___, at 48, (calling Bowles a “sleeper case” that “seems
relatively straightforward on the surface,” but “undermines precedent and lacks principled reasoning for its
result”). For a discussion of United Haulers, see Metzger, Remarks, supra note ___, at 464 (criticizing the
United Hauler court’s failure to adequately distinguish precedent).
9
7
given Supreme Court opinion is often in the eye of the ideological beholder. But the
2006 Term was unusual in that the justices of the principal decisions in these cases (so
labeled because they often were pluralities) were criticized similarly by their fellow
justices on both sides of the ideological line. In Hein, for example, Justice Scalia – who
voted with the principal opinion — accused it of drawing “utterly meaningless
distinctions,” and thereby undermining the rule of law. 13 In this he joined Justice Souter,
dissenting, who also saw “no basis” for the plurality’s distinction “in either logic or
precedent.” 14
In Federal Election Commission v. Wisconsin Right to Life, Justices
Souter and Scalia (writing for seven justices between them!), made similar arguments.
Justice Souter said “the principal opinion institute[d] the very standard that would have
prevailed if the Court formally overruled McConnell,” and that despite the principal
decision arguing otherwise, “[t]here is neither a theoretical nor a practical basis to claim
that McConnell] . . . . survives.” 15 So too said Justice Scalia, who deemed “the principal
opinion’s attempt at distinguishing McConnell” “unpersuasive.” 16 Summing up the Term
in a rare opinion (in the Parents Involved case) read from the bench, Justice Breyer said
“It is not often in the law that so few have so quickly changed so much.” 17 All of this led
George Mason Law Professor Neomi Rao to conclude: “There’s an agreement perhaps
amongst some of the conservatives and some of the liberals that the minimalists as it
were are being less than forthright in what they’re doing.” 18
13
Hein, 551 U.S. at 618 (Scalia, J., concurring).
Hein, 551 U.S. at 637 (Souter, J., dissenting).
15
Wis. Right to Life, 551 U.S. at 534 (Souter, J., dissenting).
16
Wis. Right to Life, 551 U.S. at 499 n.7 (Scalia, J., dissenting).
17
Dworkin, Supreme Court Phalanx, supra note ___, at 92.
18
Morning Edition: The Roberts Court and the Role of Precedent (NPR radio broadcast July 3, 2007).
14
8
Which raises the question: was there really something unusual going on during
the 2006 Term, some sort of precisely identifiable and definable phenomenon? After all,
as Stanford Law Professor Pam Karlan, no lover of the Roberts Court, has explained, “I
think, practically, the court has overruled a number of cases. But the chief can say with a
straight face, “I didn’t vote to overrule it. I simply limited the earlier decisions to its fact,
or I refused to extend the earlier decision.” 19
To answer this question, it is necessary to think about what might be meant by the
terms “overruling” and “stealth” in the claim of stealth overruling. As will be evident
shortly, the claims of stealth overruling by critics of the Roberts Court were both illdefined and sometimes overblown. Still, something important seems to have happened,
and so a necessary first step is defining precisely what that was.
A.
Overruling
In Webster v. Reproductive Health Services, Justice Scalia provided a taxonomy
of options the Supreme Court faces when considering a precedent – in that case Roe v.
Wade. He chastised the other justices in the majority regarding the disposition of the case
for failing to seize the bull by the horns and flatly overrule Roe. “Of the four courses we
might have chosen today – to reaffirm Roe, to overrule it explicitly, to overrule it sub
silentio, or to avoid the question—the last is the least responsible.” 20
With a little reordering and explication, Justice Scalia’s taxonomy can prove
useful to the task at hand. It seems that on a continuum, reaffirming Roe should have
been at the other end, juxtaposed with explicit overruling.
More important, while
“avoidance” was the special issue in Webster, more commonly the question is one of
19
20
Morning Edition: The Roberts Court and the Role of Precedent (NPR radio broadcast July 3, 2007).
Webster, 492 U.S. at 537 (Scalia, J., dissenting).
9
distinguishing the precedent. Thus, in any given case the Court is left with the following
array of options:
Overrule explicitly . . . Overrule sub silentio . . . Distinguish the precedent . . . Reaffirm
Neither explicit overruling nor re-affirmance helps understand the accusation of
stealth overruling, except perhaps as a contrast. When explicitly overruling, the Court is
quite clear in what it does. Similarly, when stealth overruling, the last thing the justices
would want to do is bless the prior precedent. (Of course, in failing to overturn a
precedent explicitly, they may end up blessing it by implication, a problem we will get to
later.)
The trouble comes in the middle: the question one properly asks is whether it is
possible to identify a meaningful difference between overruling a precedent sub silentio,
and simply distinguishing it. 21 If not, then there may be nothing special about the sort of
overruling commentators are complaining about, whether done by stealth (the word
21
In taking up this question of whether one can tell overruling sub silentio apart from merely distinguishing
precedent, one necessarily puts aside claims by some that the entire endeavor of doing law is itself a fiction.
This is a view held by no small number of commentators, among them some Legal Realists and political
scientists, who have found judicial opinions simply a cloak for some other set of “real” reasons for
disposing of a case in a particular way. See Cardozo, Nature of the Judicial Process, supra note ___, at 3031 (noting that precedent does “less than half the work” of deciding cases, and setting out the principles
that should inform judges’ decisions); Segal & Spaeth, Attitudinal Model Revisited, supra note ___
(presenting and testing the attitudinal model of judicial behavior, which holds that judges are primarily
motivated by their ideological beliefs); see generally Friedman, Politics of Judicial Review, supra note ___
(describing positive scholarship on how judges’ ideology predicts their decisions, and outlining its
implications for normative scholarship of the type typically practiced in the legal academy). But in some
sense the very fight over stealth overruling itself belies the claim: there are, at least, a good number of
commentators who believe the drawing of precedential distinctions is a real endeavor, and that one can
identify when it is done disingenuously. See Peters, Under-the-Table Overruling, supra note ___, at 1072
(accusing the Roberts Court, in each of three high-profile cases cases, of having “effectively gutted a core
aspect of some recently decided precedent without confessing that it was doing so”); Kress, Legal
Indeterminacy, supra note ___, at 296-97 (discussing the pervasiveness of “easy cases” as a sign that the
law is not radically indeterminate); Sherry, The Unmaking of a Precedent, supra note ___, at 255-56
(taking the Supreme Court to task for its “lack of candor” in dodging precedent in Section 5 cases). Even
profound skeptics of the legal endeavor might see the consequential import of overruling explicitly or by
stealth.)
10
implies misbehavior, a question we also will come to shortly) or otherwise. Perhaps the
justices were proceeding as judges ordinarily do under the case method.
This is precisely the point made by the justices in the 2006 principal opinions, and
some of their defenders. The authors of principal opinions did not always respond
directly to the taunts coming from either side of them, but when they did their claim was
that they were engaging in the proper business of the law: drawing distinctions from
precedents. Thus, in Hein, Justice Alito took pains to deem the view he rejected a “broad
reading of Flast.” 22 Seeking to place his decision within the fabric of precedent, he
argued that Flast itself was a “narrow exception to the general constitutional prohibition
against taxpayer standing,” and quoted a dissenting judge in the court below to the effect
that the decision granting standing under Flast was itself “a dramatic expansion of
current standing doctrine.” 23 Similarly, in WRTL, the Chief Justice took pains to point
out that what he was doing was merely refining a prior precedent:
McConnell held that express advocacy of a candidate or his opponent by a
corporation shortly before an election may be prohibited, along with the
functional equivalent of such express advocacy. We have no occasion to
revisit that determination today. But when it comes to defining what
speech qualifies as the functional equivalent of express advocacy subject
to such a ban – the issue we do have to decide – we give the benefit of the
doubt to speech, not censorship. 24
The question, then, is whether there is any definitional way to tell the
distinguishing of precedent from the sub silentio overruling of precedent. After all, as
one of the Court’s critics, Steven Shapiro, has conceded, “The mere fact that the Supreme
Court, or any court, has decided an issue in a particular case does not mean that the next
22
Hein, 551 U.S. at 592 (plurality opinion).
Hein, 551 U.S. at 602 (plurality opinion); id. at 597 (quoting Freedom From Religion Foundation v.
Chao, 433 F.3d 989 (7th Cir. 2006) (Ripple, J., dissenting)).
24
Wis. Right to Life, 551 U.S. at 482 (plurality opinion) (first emphasis added).
23
11
case raising a similar issue cannot be distinguished to permit a different result without
overruling the earlier decision.” 25 Compounding the problem is the fact that the Supreme
Court operates on a sea of precedents, which often point in different ways. Michael
Gerhardt and Richard Posner have independently observed that to cast one precedent
aside is almost inevitably to raise up or reaffirm another. 26
Commentators were off the mark in at least some cases when claiming that
overruling had occurred. Strictly speaking, if a case is overruled, its holding no longer
governs. 27 That might have been the case for some of the 2006 decisions. For example,
after WRTL it may no longer have been meaningful to talk in terms of the McConnell
decision as having any appreciable force. But the same was demonstrably not the case
with regard to the relationship between Flast and Hein. Hein declined to apply the rule
of Flast to the actions of the executive branch, but there is absolutely no indication that
taxpayers were stripped of standing to challenge congressional spending in violation of
the Establishment Clause. That was Flast’s holding, and it remains. Similarly, it might
have seemed that Morse v. Frederick should have come out differently under Tinker, but
there is no reason to believe Tinker will not apply to other cases, particularly those not
involving encouragement of unlawful conduct, the distinction relied upon by the
justices. 28
25
Shapiro, Remarks, supra note ___, at 472.
See Gerhardt, Silence is Golden, supra note ___, at 482 (arguing that “overturning a precedent is not
necessarily an act that is entirely hostile to precedent, for in most cases overturning a precedent actually
reinforces or expands some other precedent(s)”); Posner, How Judges Think, supra note ___, at 46 (“As a
result of the Court's long history and sharp ideological swings, there is a large stock of precedents that not
having been formally overruled are available for opportunistic rehabilitation”).
27
To overrule is to “overturn or set aside (a precedent) by expressly deciding that it should no longer be
controlling law” (Black’s Law Dictionary, 8th ed. 2004).
28
RA: cite?
26
12
Critics of stealth overruling tend to see cases as presenting a binary choice,
between following existing precedents to their logical conclusion, or discarding them to
reach the contrary result. But the justices they criticize seek a middle way. Those
justices claim to move incrementally, distinguishing prior precedents as they go. 29 The
argument, as in Hein, is “thus far but no farther.” 30
This incremental middle way is often prized in the common law.
Although
constitutional cases differ in important ways from their common-law counterparts, 31 there
also are telling similarities that make the rules of the common law apt. One undeniable
difference is that common law decisions can be overturned legislatively while
constitutional ones for the most part cannot. If anything, however, this would seem to
favor precisely the sort of incremental movement the justices claim. Another potential
difference is that constitutional decisionmaking involves interpreting a positive text,
much like statutory construction. This, for example, was true of the recent Second
Amendment case, District of Columbia v. Heller, which required recurring to text and
framing-era intentions. 32 But as many, most notably David Strauss, have observed, this
difference can obscure more than it illuminates. 33
29
In truth, much if not most of
See Parents Involved, 551 U.S. at 725 (claiming to obey “key limitations” in Grutter that had been
“largely disregarded by the lower courts”); Morse, 551 U.S. at 409 (majority opinion) (minimizing
disagreement with the dissenters, and arguing that this disagreement “hardly justifies sounding the First
Amendment bugle”).
30
See Hein, 551 U.S. at 615 (rejecting the contention that “we must either overrule Flast or extend it to the
limits of its logic,” and declaring that “We do not extend Flast, but we also do not overrule it. We leave
Flast as we found it”).
31
See Posner, How Judges Think, supra note ___, at 277 (distinguishing constitutional law from common
law judging as being less “disciplines and predictable,” more “personal and political”).
32
128 S.Ct. 2783 (2008).
33
See Berman, Constitutional Decision Rules, supra note ___, at 15 (distinguishing judicial statements of
what the Constitution means from “constitutional decision rules,” defined as “judicial statements of how
courts should decide whether the operative propositions have been complied with”); Monaghan,
Constitutional Common Law, supra note ___, at 2-3 (noting that much supposed “authoritative
constitutional ‘interpretation’ is best understood as something of a quite different order--a substructure of…
rules drawing their inspiration and authority from, but not required by, various constitutional provisions; in
13
constitutional decisionmaking in the present involves moving from precedent to
precedent, as in the common law.
That was certainly the case for the 2006 cases
involving claims of stealth overruling, in which constitutional common law decisionmaking was the order of the day.
The question was how the Court treated prior
precedents.
The common law analogy allows us to see more precisely what was wrong with at
least some of the 2006 decisions. First, while the endeavor of the common law is one of
drawing distinctions, those distinctions nonetheless must be persuasive, at least to those
within the practice. 34
Persuasiveness is a function of the relationship between the
original rule and its rationale. In other words, distinctions drawn by a subsequent court
must be germane to the purpose or justification for the rule itself. 35 When they are not,
short, a constitutional common law subject to amendment, modification, or even reversal by Congress”);
Roosevelt, Constitutional Calcification, supra note ___, at 1652-58 (applying Professor Berman’s
distinction to more areas of constitutional law and drawing out normative implications for judicial
behavior); Strauss, Common Law Constitutional Interpretation, supra note ___, at 904 (noting that “what
matters to most constitutional debates, in and out of court, is the doctrine the courts have created, not the
text”).
34
See Cardozo, The Nature of the Judicial Process 164 (noting that most cases “could not, with semblance
of reason, be decided in any way but one”); Dworkin, Law’s Empire, 247-48 (suggesting that a morally
superior interpretation of precedent can prevail over the preceding judges’ own rationales, provided that it
“offers a brilliant account of the actual decisions, showing them in a better light than ever before”; =
Llewellyn, The Common Law Tradition, supra note ___, at 85 (calling “dubiously legitimate” the judicial
move whereby “a distinction is taken” from precedent, “but without a difference”); Monaghan, Stare
Decisis, supra note ___, at 766-67 (“Every court and every lawyer knows that there are precedents that
simply cannot be distinguished; they must be either followed or overturned”); Schauer, Precedent, supra
note ___, at 587 (“Precedent rests on similarity, and some determinations of similarity are incontestable
within particular cultures or subcultures”); Shapiro, Beyond Candor, supra note ___, at 734 (“There are
times when a precedent cannot be distinguished away even under the narrowest approach consistent with
fair argument”).
35
See Monaghan, Stare Decisis, supra note ___, at 764-65 (acknowledging the line of thought which holds
that rationales do not form part of holdings, but strongly disagreeing); Schauer, Dicta, supra note ___, at
2040 (arguing that, for judicial legitimacy and the rule of law, the holding of a precedent must be derived
from its rationale, not merely from the combination of its facts and outcome); Summers, Substantive
Reasons, supra note ___, at 730-32 (declaring that “a judge cannot apply a precedent wisely without
determining which proposed application is most consistent with the substantive reason behind the
precedent”). But see Goodhart, Determining the Ratio Decidendi of a Case, supra note ___, at 162 (“the
reason which the judge gives for his decision is never the binding part of the precedent”).
14
then one begins to see the gap between distinguishing prior precedents, and “overruling”
them. 36
Hein is a good example of a case in which the distinctions drawn were not
germane to the purpose at hand. The question in Hein was whether the rule of Flast v.
Cohen governed. Flast had held that despite the general rule against allowing standing
solely on the basis of being a taxpayer, standing would be extended to taxpayers alleging
violations by the government of the Establishment Clause. 37 This was because, as the
court explained, taxpayers have a special interest in challenging congressional
transgression of “specific constitutional limitations” on the spending power. 38 Hein
distinguished Flast on the ground that there the expenditure was by Congress, whereas in
Hein “Congress did not specifically authorize the use of federal funds” and such
expenditures came “out of general Executive Branch appropriations.” 39
As the dissenting and concurring justices in Hein went to pains to point out,
however, this distinction between the Executive Branch and Congress was completely
unrelated to the purposes of the Flast rule itself. And, in fact, Justice Alito’s opinion
made no effort whatsoever to argue otherwise. All Justice Alito said – besides repeatedly
drawing the formal distinction between executive and congressional action – was that
applying Flast to executive action would “effectively subject every federal action . . . to
Establishment Clause challenge by any taxpayer in federal court” and “would also raise
serious separation-of-powers concerns.” 40 This, however, is a policy argument, not a
36
See Posner, How Judges Think, supra note ___, at 184 (remarking that “Distinguishing a precedent is a
useful pragmatic tool when it is not merely a euphemism for overruling”).
37
Flast, 392 U.S. at 105-06 (announcing holding).
38
Flast, 392 U.S. at 102-103.
39
Hein, 551 U.S. at 592 (plurality opinion).
40
Hein, 551 U.S. at 610, 612 (plurality opinion).
15
distinction. These very same considerations are inherent in Flast itself. Justice Scalia
said the Alito opinion relied upon “utterly meaningless distinctions which separate the
case at hand from the precedents that have come out differently, but which cannot
possibly be (in any sane world) the reason it comes out differently.” 41 Justice Souter
echoed the point -- “I see no basis for this distinction in either logic or precedent” – and
went on to demolish the separation of powers argument writing “there is no difference on
that point of view between a Judicial Branch review of an executive decision and a
judicial evaluation of a congressional one:
It would surely violate the Establishment Clause for the
Department of Health and Human Services to draw on a general
appropriation to build a chapel for weekly church services (no less than if
a statute required it), and for good reason: if the Executive could
accomplish through the exercise of discretion exactly what Congress
cannot do through legislation, Establishment Clause protection would melt
away. 42
Consider it this way. Suppose a court in case one holds a person liable for
stealing a neighbor’s cow. The next case is identical, but the cow is a pig. This
defendant is absolved on the ground that “in our prior case the animal stolen was a cow,
but this is a pig.” No one would buy this argument, or feel justice done, without some
reason as to why a pig was different than a cow. There needs to be some understanding
of what the category is at issue here, and of the reason for putting things into one
category as opposed to the other.
The drawing of unpersuasive distinctions violates a cardinal principle of the rule
of law, that likes must be treated alike. 43 Too much can be made of the imperative:
41
Hein, 551 U.S. at 618 (Scalia, J., concurring).
Hein, 551 U.S. at 637, 639-40 (Souter, J., dissenting).
43
See, e.g., Aristotle, The Nicomachean Ethics, §§ 1131a-1131(b) (identifying equality of distribution with
justice); The Concept of Law, supra note ___, at 159 (discussing like treatment of similar cases as a
42
16
ultimately it all depends on what Frederick Schauer calls categories of likeness. 44 But it
is precisely here that Justice Alito failed. The Executive Branch may have been different
from Congress in Flast in some meaningful way, just as the cow might have differed
from the pig. But it behooved the court to explain this distinction in a manner germane to
the subject at hand (be it expenditures of religious purposes, or theft). If it cannot do that,
a court has failed in its most basic of obligations. When persuasive distinctions are not
drawn – and likely cannot be – then decisionmaking becomes nothing other than brute
force, fiat rather than reason. 45 In Hein, Justice Scalia derided the Hein principal opinion
as one resolved only by a “show of hands.” 46
Second, the exercise of distinguishing a prior precedent fails if, at its end, the
latter decision is so completely unfaithful to the prior precedent that one questions
principle fundamental to justice); The Legal Process, supra note ___, at 143 (declaring that “the magistrate
is obliged to resolve the issue before him on the assumption that the answer will be the same in all like
cases”); The Nature of the Judicial Process, supra note ___, at 33 (declaring that “it will not do to decide
the same question one way between one set of litigants and the opposite way between another”);
Greenawalt, Two Steps Forward, supra note ___, (arguing that precedential equality is coherent even when
it conflicts with the dictates of justice); Hathaway, Path Dependence, supra note ___, at 652-54 (arguing
that respect for precedent encourages judges to treat likes alike, an inherent moral good); Simons, Logic of
Egalitarian Norms, supra note ___, at 731-38 (defending the notion of precedential equality); but see
Peters, Equality Revisited, supra note ___, (rejecting as incoherent the concept of “prescriptive equality,”
or treating likes alike over time); Peters, Foolish Consistency, supra note ___ (rejecting any deontological
moral basis for stare decisis, and arguing that precedential constraint should always give way to justice
when the two conflict).
44
Schauer, Precedent, supra note ___, at 595-97. See also Llewellyn, The Bramble Bush, supra note ___,
at 48 (discussing the difficulty of sizing one’s categories of likeness).
45
See Schauer, Giving Reasons, supra note ___, at 658 (noting that judicial reason-giving conveys respect
for the subject of the mandate). Accord Deutsch, Neutrality, supra note ___, at 235-36 (“much of the
Supreme Court's prestige stems from the public's identification of the law with “logic,” with the pattern of
decision rather than with the individual case. And, as is again true of all common-law courts, it is this
identification that ultimately accounts for the reservoir of public acceptance upon which courts draw”);
Ferejohn & Pasquino, Constitutional Courts, supra note ___, at 23-35 (arguing that judicial reason-giving
provides democratic legitimacy to unelected courts; helps us to respond with acceptance to the normative
force of the decision; and permits other actors to anticipate the decision’s consequence for future cases);
Dragich, Will the Federal Courts of Appeals Perish If They Publish?, supra note ___, at 776 (quoting Judge
Patricia Wald, then of the D.C. Circuit Court of Appeals, stating that reasoned opinions “lend decisions
legitimacy, permit public evaluation, and impose a discipline on judges”); Fuller, Forms and Limits of
Adjudication, supra note ___, at 366-67 (stating that adjudication “assumes a burden of rationality not
borne by any other form of social ordering…[a] decision which is the product of reasoned argument must
be prepared itself to meet the test of reason”.
46
Hein, 551 U.S. at 618 (Scalia, J., concurring).
17
whether that prior precedent exists any longer other than as restricted to its “facts.” 47
Facts is in scare quotes here because constitutional cases are at least as a matter of degree
often different from common law decisions in that they announce rules somewhat
abstracted from the specific facts of the case. Really what happens in constitutional cases
is that a prior precedent is reduced to its very bare bones, its narrowest application.
Thus, in responding to Justice Alito’s claim in Hein that precedents need not be taken to
their logical conclusion, Justice Scalia replied, “but since courts purport to be engaged in
reasoned decisionmaking, it is only true when (1) the precedent’s logic is seen to require
narrowing or readjustment in light of relevant distinctions that the new fact situation
brings to the fore; or (2) its logic is fundamentally flawed, and so deserves to be limited
to the facts that begot it.” 48 In a sense Justice Alito was arguing that Flast was wrong
and should be so limited. Yet at the same time that Justice Alito failed to draw a
meaningful limiting distinction (the argument above), he nonetheless left standing Flast’s
continuing application to the broad sphere of congressional spending. If Flast was so
fundamentally flawed, it was hard to see why it should continue to have life.
Reducing a precedent to essentially nothing was the common complaint about the
decision in Federal Election Commission v. Wisconsin Right to Life. 49 At issue in WRTL
was a provision of the Bipartisan Campaign Reform Act that forbade corporations from
broadcasting ads that named a candidate for federal office. The problem was whether
this prohibition ran afoul of the First Amendment by banning advocacy about issues of
47
See The Bramble Bush, supra note ___, at 67 (noting that, when a precedent is tightly confined to its
facts, “you know that in effect it has been overruled…the rule which the prior court laid down is
disembowelled”; Schauer, Dicta, supra note ___, at 2040 (arguing that, for judicial legitimacy and the rule
of law, the holding of a precedent must be derived from its rationale, not merely from the combination of
its facts and outcome). But see Goodhart, Determining the Ratio Decidendi of a Case, supra note ___, at
162 (“the reason which the judge gives for his decision is never the binding part of the precedent”).
48
Hein, 551 U.S. at 628-29 (Scalia, J., concurring).
49
551 U.S. 449 (2007).
18
public moment. In McConnell v. FEC the Court held not, on a facial challenge to the
statute, drawing the line between “express” campaign speech or its “functional
equivalent,” on the one hand, and issue advocacy on the other. In WRTL, as we have
seen, the principle opinion purported to do nothing but define McConnell’s “functional
equivalent” test, holding that “a court should find an ad is the functional equivalent of
express advocacy only if the ad is susceptible to no reasonable interpretation other than as
an appeal to vote for or against a specific candidate.” 50
While all this might seem quite reasonable – and is an understanding of the First
Amendment’s requirements over which reasonable people could differ – it was almost
impossible to maintain that WRTL was faithful to McConnell. The argument as to why
not is complex, but Justice Scalia explained it with reference to a paradigm case. The
decision, he said:
would apparently protect even McConnell’s paradigmatic example of the
functional equivalent of express advocacy – the so-called “Jane Doe ad,”
which “condemned Jane Doe’s record on a particular issue before
exhorting viewers to ‘call Jane Doe and tell her what you think.’” Indeed,
it at least arguably protects the most “striking” example of a so-called
sham issue ad in the McConnell record, the notorious “Yellowtail ad,”
which accused Bill Yellowtail of striking his wife and then urged listeners
to call him and “[t]ell him to support family values.” 51
In other words, if certain paradigm cases would be struck down under McConnell’s
holding, but upheld under WRTL’s, then WRTL was not faithful to McConnell. For this
reason, both the dissenting and concurring justices concluded that the principal opinion
had failed in its basic obligation of fidelity to a precedent and was thus in reality
overruling that precedent. Any claim that the WRTL test was “compatible with
McConnell—seems to me indefensible,” wrote Justice Scalia. “Indeed, the principal
50
51
Wis. Right to Life, 551 U.S. at 469-70.
Wis. Right to Life, 551 U.S. at 498 n.7 (Scalia, J., concurring) (citations omitted).
19
opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in
the law it works is substantial enough, that seven Justices of this Court, having widely
divergent views concerning the constitutionality of the restrictions at issue, agree that the
opinion effectively overrules McConnell without saying so.” 52 Justice Souter agreed,
saying the test of the principal opinion is “flatly contrary to McConnell,” and “simply
inverts what we said in McConnell.” 53
When critics of the 2006 decisions speak of “overruling,” then, what they really
mean is the disingenuous treatment of prior precedents in one of two specific ways.
Either there has been the drawing of distinctions entirely non-germane to the matter at
hand. Or, the justices interpret prior precedent in a way that leaves that precedent itself
limited essentially to its facts or circumstances, with no germinal power beyond that.
Before moving on, it is important to observe that this practice, and the complaints
it engenders, are hardly unique to the Roberts Court. Plessy v. Ferguson was overruled
by the Warren Court largely without drawing any distinctions at all, let alone meaningful
ones. Brown was a reasoned rejection of Plessy in the context of school desegregation,
of course. 54 But the series of per curiam decisions striking down segregation elsewhere
were nothing but pure fiat, a point made repeatedly in their wake. 55 Apprendi v. New
52
Wis. Right to Life, 551 U.S. at 498 n.7 (Scalia, J., concurring).
Wis. Right to Life, 551 U.S. at 526 (Souter, J., dissenting). In Morse v. Frederick, Justice Stevens made a
similar claim about the majority opinion’s failure to deal appropriately with the key precedent of Tinker v.
Des Moines Ind. Comm. School Dist., saying “the Court fashions a test that trivializes the two cardinal
principles upon which Tinker rests.” Morse, 551 U.S. at 437 (Stevens, J., dissenting).
54
Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954).
55
See Florida ex rel. Hawkins v. Bd. of Control, 347 U.S. 971 (1954) (per curiam) (desegregating Florida
law schools); Tureaud v. Bd. of Supervisors of La. State Univ., 347 U.S. 971 (1954) (per curiam)
(desegregating Louisiana State University); Mayor v. Dawson, 350 U.S. 877 (1955) (per curiam)
(desegregating public beaches); Holmes v. Atlanta, 350 U.S. 870 (1955) (per curiam) (desegregating public
golf courses); Gayle v. Browder, 352 U.S. 903 (1956) (per curiam) (desegregating bus system of
Montgomery, Ala.); New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54 (1958) (per
curiam) (desegregating public housing). For criticism of the post-Brown opinions, see Bickel &
Wellington, Legislative Purpose, supra note ___, at 3 (criticizing the post-Brown per curiam opinions for
53
20
Jersey forbade non-jury fact-finding that pushed a criminal sentence above the statutory
maximum for the offense charged. 56 Many (including the principal dissent) argued the
reasoning of the opinion was entirely at odds with McMillan v. Pennsylvania, which had
upheld a similar scheme, but the Apprendi court expressly declined to overrule McMillan,
citing considerations of reliance. 57 In Keystone Bituminous Coal Ass'n v. DeBenedictis,
the Court took on facts remarkably similar to those in Pennsylvania Coal Co v. Mahon, a
case regarding the threshold for regulatory takings of land—but came to the opposite
result, without overruling Mahon.58 Once again, critics sounded notes similar to those
involving the 2006 cases. 59
B.
Stealth
Which brings us to the problem of stealth. The claim of stealth overruling implies
knowledge and intent. When critics insist that justices are overruling by stealth, they are
asserting that the author and those joining the decision know the distinctions just don’t
“fail[ing] to build the bridge between the authorities they cite and the results they decree”; Sacks, Forward,
supra note ___, at 99 (wondering whether the post-Brown Court was “extending the use of the summary
opinion to cases where fuller exposition of views is warranted”); Friedman, Neutral Principles, supra note
___, at 515 n.83 (collecting other 1950s law review articles critical of the post-Brown opinions).
56
530 U.S. 466 (2000).
57
See McMillan v. Pennsylvania, 477 U.S. 79 (1986); Apprendi, 530 U.S. at 487 n.13 (“We do not overrule
McMillan. We limit its holding…”); cf id. at 533 (O’Connor, J., dissenting) (arguing that “it is incumbent
on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of
action is appropriate under normal principles of stare decisis”). For discussions of Apprendi, see Huigens,
Harris, Ring, supra note ___ (calling the distinction between McMillan and Apprendi an “irrelevant
fortuity” and their supposed consistency “no more than nominal”); Levine, Confounding Boundaries, supra
note ___ (arguing that the principles underlying Apprendi require overturning McMillan); Swan, Apprendi,
supra note ___, at 730 (observing that “depending on how expansively Apprendi is read, McMillan has
been overruled or greatly scaled back”).
58
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987); Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393 (1922).
59
For discussions of Keystone, see Epstein, Takings, supra note ___, at 15 (accusing Stevens in Keystone
of “demot[ing] Holmes’s observations [in Mahon] essentially to gratuitous dicta”); Michelman, Takings,
supra note ___, at 1600 n.2 (calling Stevens’s treatment of Mahon an “amazing reconstruction,” performed
“chiefly by recasting as advisory dicta what generations of sophisticated lawyers and judges have regarded
(although not without some puzzlement) as gospel holding”); Arlin, Property Rights, supra note ___, at
319 n.140 (observing that Mahon may no longer be valid).
21
work, and that claims of fidelity to the germinal precedent just won’t wash. They are
casting aspersions.
In this way, stealth is to be distinguished from its close cousin, over-ruling sub
silentio. Though the two could be said to be the same, in truth over-ruling sub silentio
also could imply an accidental or unknowing treading on pre-existing precedents.
Precisely because appellate courts face so many precedents, over-ruling sub silentio is
always a possibility. 60 It may simply be the case that a prior precedent can no longer
stand in light of the appellate court’s latest pronouncement. 61 But the judges writing the
latest pronouncement may not be aware of this, and the fact may not become clear until
some time later, in another case. 62
So once again we are confronted with the problem of telling two acts apart. This
time the problem is distinguishing over-ruling that is intentionally disguised, from overruling that simply happens unconsciously. Necessarily the test is a subjective one, and
thus it is very difficult to know if “overruling” by the terms above – drawing meaningless
60
Just as, to borrow Michael Gerhardt’s phrase, “in most cases overturning a precedent actually reinforces
or expands some other precedent(s),” so extending one precedent often suppresses another. See Gerhardt,
Silence is Golden, supra note ___, at 482; Shannon, Overruled by Implication, supra note ___, at 156-57
(outlining conceptual and practical obstacles to doing all overruling expressly).
61
See Moore’s Federal Practice, supra note ___, §134.05[6], (stating that “there are circumstances in which
a prior decision will be overruled implicitly rather than explicitly. A lower court is not bound to follow a
decision that has been implicitly overruled”).
62
Different courts treat the problem of sub silentio over-ruling in different ways. The Supreme Court of
the United States has made clear in a number of contexts that its explicit pronouncements are to be
followed; implicit overruling is to be disregarded. In Rodriguez de Quijas v. Shearsow/American Express,
Inc., the Court declared that, “[i]f a precedent of this Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own decisions.” 490 U.S. 477, 484
(1989). Similarly, in Hohn v. United States, the Court said that “[o]ur decisions remain binding precedent
until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their
continuing vitality.” 524 U.S. 236, 252-53 (1998). But, as Thomas L. Fowler reports, the North Carolina
Supreme Court has taken quite another tack, acknowledging sub silentio overruling in several of its cases,
and “in one court of appeals case explicitly [finding] error when a trial court did not find that a case had
been overruled sub silentio.” Fowler, Law Between the Lines, supra note ___, at 154.
22
distinctions or being faithless to prior precedent by reducing it to its facts and
circumstances – is happening knowingly or not. 63
Nonetheless there are objective indicia that can provide some guidance. The law
often turns to objective tests when – even though the intent of the actor really seems the
ticket – subjective intent cannot be truly known or easily discerned. For example, official
immunity for constitutional torts ends when an actor acted without “good faith.” 64 The
true faith of the official seems the relevant consideration. If the official didn’t know –
and had no good reason to know – that constitutional norms were being violated, liability
would make little sense. But the test applied is one of “objective good faith” – officers
are held to know about “clearly established” rules whether they in fact did or not. 65
In cases in which stealth overruling is at issue, there will commonly be such
objective evidence. Litigation is a public process. Lawyers for litigants write briefs.
Disagreeing justices write opinions explaining why. In important cases, commentators
follow what is happening. In the run-up to the 2006 Term cases, there were frequent
63
See Gerhardt, Silence is Golden, supra note ___, at 493 (noting that “[e]ven if we can show [that the
Justices’] legal reasoning is deficient, we have not shown that they are acting deceitfully”); Shapiro, In
Defense of Judicial Candor, supra note ___, at 734 (“the question of candor turns ultimately on the judge's
state of mind”); Smith, New Legal Fictions, supra note ___, at 1481 (arguing that candor is only coherent if
defined subjectively, so new legal fictions are not uncandid if they are solely the product of judicial
ignorance); but see Idleman, A Prudential Theory of Judicial Candor, supra note ___, at 1318 (proposing
an “objective definition” of judicial candor, whereby “a judge could be considered less than candid
whenever she adheres to or propounds a position that is either factually incorrect or logically unsound”).
64
See Graham, 490 U.S. at 399 n.12 (noting “objective good faith” requirement for official immunity);
Harlow, 457 U.S. at 816-18 (rejecting “litigation of the subjective good faith of government officials” in
favor of a rule that examines whether official conduct “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have known”; see also Leon, 468 U.S. at 922-24
(establishing exception to the exclusionary rule where police rely in objective good faith test on
subsequently invalidated search warrants); Idleman, A Prudential Theory of Judicial Candor, supra note
___, at 1318 (proposing to “calibrat[e] the meaning of candor to one or more external criteria of assessment
such as truth, logical validity, or factual or empirical accuracy”); but see LaFave, Expediency, supra note
___, at 915 (describing the difficulty of inferring subjective bad faith from judicial mistake of law).
65
See Harlow, 457 U.S. at 818 (giving civil immunity to officials performing discretionary functions unless
they “violate clearly established statutory or constitutional rights of which a reasonable person would have
known”).
23
arguments about the constraining effect of existing precedents. 66 One can presume that if
the arguments about why certain precedents and rulings cannot stand consistently
together were aired and not treated, that failure to treat was intentional on the part of the
authors who chose to ignore these important entreaties. Similarly, if the universal (or
almost universal) reaction to an opinion is that it is plainly unworkable, then that is
evidence of the subjective state of mind that might be called “stealth.” 67
In a practice like the law, the consensus of the profession matters. 68
The
treatment of doctrine and precedents is a practice taught painstakingly in law schools, and
one honed by lawyers throughout their lives. The primary purpose of the first year of law
66
The Freedom from Religion foundation, in its brief, argued strenuously that the holding of Flast did not
turn on the Congressional origin of the challenged spending program: “Nothing in the [Flast and Kendrick]
Court’s analysis supports the assertion that simply because those cases happened to involve grant programs
established by Congress the Flast rule is restricted to that setting.” Brief for Respondents at 28, Hein v.
Freedom from Religion Foundation, 551 U.S. 587 (2007) (No. 06-157). Commentary in the months
leading up to argument also dwelt on the relevance of Flast, sometimes speculating that the Court would
overrule that case. Walter Weber, a conservative think tank lawyer, predicted such an overruling on the
National Review’s website, arguing that “having already eroded the entire foundation supporting Flast, the
Supreme Court has left it in a very precarious position. All the Court needs now is the will, and the
opportunity, formally to overrule Flast.” Walter M. Weber, Supreme Standing, available at
http://article.nationalreview.com/?q=MTE0NjQyNTUzMTg3NDBlYTMyZTU1ZTY1NzQ1MzFlMjk=
(Jan. 5, 2007). USA Today quoted the Freedom From Religion Foundation to the effect that “neither the
1968 case [Flast] nor American history requires a distinction between legislative and executive actions.”
Joan Biskupic, Church-State Question Before Justices, USA Today, Feb. 28, 2007, at 8A. Similarly, Sen.
McCain and his fellow appellants in WRTL argued in their briefs that McConnell straightforwardly
controlled in their case. See Brief for Appellants, FEC v. Wis. Right to Life, 551 U.S. 449 (2007) (No. 06970). Their lawyers made the same point in Roll Call (“This ad is precisely the kind of ad that was before
the court in the McConnell case”), while the Los Angeles Times editorialized, approvingly, that, given the
facts of the case, an as-applied decision in favor of Wisconsin Right to Life would amount to a reversal of
McConnell. See Matthew Murray, High Court to Hear Case Involving Issue Ads, Roll Call, April 23, 2007;
Editorial, Toward Freer Speech, L.A. Times, Jan. 30, 2007, at A16. RA: fn needs tightened with parens
67
For arguments that egregious omission, misreading, or illogic can suggest judicial bad faith, see Johnson,
Race and Recalcitrance, supra note ___, at 137 (attributing to “resistance, or at least deliberate
inattention,” Fifth Circuit’s egregious failure, in remand opinion, to respond to Supreme Court’s criticism);
Peters, Under-the-Table Overruling, supra note ___, at 1071-1072 (arguing that the departures from
precedent in Stenberg, McConnell, and Grutter are so great that they “cannot honestly be justified by some
material difference in facts” (emphasis added)). For a rare instance of a misreading (perhaps) proven to be
stealthy, see The Intelligible Constitution, supra note ___, at 92-97 (discussing Justice Brennan’s
misleading synthesis of the Court’s views in his plurality opinion in Regents of Univ. of California v.
Bakke, written after Powell told Brennan that this characterization did not accurately reflect Justice
Powell’s own opinion).
68
For an argument that public scrutiny leads to better opinions, see Reynolds & Richman, Evaluation of
Limited Publication, supra note ___, at 621 (finding that a major problem with limited publication of
appellate court opinions is the resultant rise in “opinions that do not satisfy minimum standards”).
24
school, in addition to covering basic doctrines, is teaching students to know a good
argument from a bad one. The seeming ineffability of this practice is what makes some
outside the practice skeptical. 69 But it nonetheless remains the situation that many cases
are “easy” precisely because an overwhelming number of law-trained individuals would
call them the same way. 70. While it undoubtedly is true that few cases before the
Supreme Court are “easy” in this way, it nonetheless is true that the justices can make
arguments that the profession in general finds unpersuasive or unacceptable.
In this regard, the contemptuous chorus from the dissenting and concurring
opinions in the 2006 Term cases is telling. The Justices generally look to treat one
another with respect (with perhaps one notable exception). 71 That is why the torrent of
words we’ve already observed, scoffing and caustic, was remarkable in itself. The
dissenters and concurring opinions were irate precisely because their colleagues would
not come clean. In WRTL, Justice Souter wrote that “McConnell’s holding . . . is
overruled,” and asked “[b]y what steps does the principal opinion reach this
unacknowledged result, less than four years after McConnell was decided?” 72 Similarly,
in another potential stealth overruling case, Justice Stevens responded to the majority’s
69
RA: some of the poli sci sources could go in here.
See Hart, Positivism, supra note ___, at 607 (observing that, for legal rules to be possible, the words used
must have “a core of settled meaning” in addition to their penumbras); Lipkin, Indeterminacy, Justification,
and Truth, supra note ___, at 609 (“[i]n easy cases, qualified constitutional practitioners agree on the
meaning of the constitutional provisions”); Ripstein, Law, Language, and Interpretation, supra note ___, at
340 (observing that “the ways in which the legal culture naturalizes its new members - the socialization and
training provided by law school - determine what will seem easy and what hard”). But as many critics
note, the fact that many lawyers respond uniformly to a case or rule does not prove the existence of a
determinate meaning to the rule. See Ripstein, id.; Wolcher, Philosophical Investigation, supra note ___,
at 263 (rejecting the notion that “regularities of behavior in easy cases must be explained by some invisible
metaphysical meaning that is a property or referent of the rule itself - as opposed to an aspect of how it is
received”).
71
The exception, of course, is Justice Scalia. See Joan Biskupic, American Original: The Life and
Constitution of Supree Court Justice Antonin Scalia 354-55 (2009) (describing Justice Scalia’s occasional
attacks on his colleagues).
72
Wis. Right to Life, 551 U.S. at 525 (Souter, J, dissenting).
70
25
claim that one of his prior decisions was inconsistent with the result he advocated. Yes,
he replied, acknowledging the fact. “My fellow dissenters and I believe the Court was
right to correct its course.” His colleagues in the majority, however, he taunted, “will not
even admit that we deliberately changed course, let alone explain why it is now changing
course again.” 73
We now have a working definition:
“stealth ‘overruling’” does not involve
overruling per se, so much as the treatment of prior precedents, involving either (a)
drawing distinctions from those precedents that lack any meaning; or (b) reducing those
precedents to their very circumstances, thus depriving them of their germinal force. And
‘stealth’ is when the justices who do this should, or do, know better, such that their
decisions are in fact “dissembling”. In order to determine whether there is anything
wrong in this – after all, even dissembling has its place – it is time to turn to an important
case study. 74
II.
THE CASE OF THE DISAPPEARING MIRANDA RULE
Having defined stealth overruling, the Miranda doctrine provides a particularly
apt vehicle for examining its costs. Miranda has not generally been thought to have been
overruled by stealth.
Indeed, there remain persistent calls in some quarters for its
overruling. 75 Yet, Section A shows that by the terms definition it has been effectively
overruled. Section B then makes the argument that Miranda is a perfectly plausible
73
Bowles, 551 U.S. at 216 n. 1.
For arguments that dissembling has its place, see infra notes ______ and accompanying text.
(Notes & Text currently on pg.77-78. Search “doubt the necessity or propriety of candor altogether” to find
corresponding text.)
75
See Dickerson, 530 U.S. at 464–65 (Scalia, J., dissenting) (arguing there is “little harm” in admitting
Miranda is a mistake and that its place in the “public consciousness” does not justify preserving it); Cassell
& Fowles, Handcuffing Cops, supra note ____, at 1132 (describing Miranda as “the single most damaging
blow inflicted on the nation’s ability to fight crime in the last half-century”).
74
26
candidate for explicit overruling, raising the question of why the Court has chosen to do
so by stealth.
A.
The Gradual Overruling of Miranda
The decision in Miranda resulted from difficulties the Supreme Court faced in
ensuring that confessions obtained by police met the requirements of the Fifth
Amendment’s ban on compulsory self-incrimination and the Fourteenth Amendment Due
Process Clause. In the years prior to Miranda, the admissibility of confessions had been
analyzed under the common law “voluntariness” test, which looked to the totality of
circumstances under which a confession was acquired to see if it was the result of
coercive forces. 76 The test had proven problematic. Confessions were obtained out of
sight of judicial officers. 77 Determining what had happened often involved a swearing
contest between police and suspects. 78 There was evidence – deeply troubling evidence –
bearing unfavorably on the veracity of police and the impropriety of the interrogation
76
See, e.g., Haynes, 373 U.S. at 513 (characterizing the inquiry as whether “the defendant’s will was
overborne” and whether the confession was made “freely, voluntarily, and without compulsion or
inducement of any sort.”) (internal citations omitted)); Payne, 356 U.S., at 562 (noting the question is
“whether the confession was coerced”); Lyons, 322 U.S., at 603 (identifying the test as “whether the
accused, at the time he confesses, is in possession of ‘mental freedom’ to confess to or deny a suspected
participation in a crime.” (citing Ashcraft v. Tennessee, 322 U.S. 143 (1944)).
77
See, e.g., Lisenba v. California, 314 U.S. 219 (1941) (finding voluntary a confession obtained after the
suspect was detained for 32 hours of interrogation in violation of state law, then later left alone with an
officer who admitted to previously slapping him); Spano v. New York 360 U.S. 315, 323 (1959) (finding
involuntary a confession obtained after a defendant remained silent for five hours of interrogation, but who
confessed in the ninth hour and then took police to search for a murder weapon before being arraigned);
Crooker v. California, 357 U.S. 433, 441 (1958) (affirming the conviction of a defendant who asked for and
was denied counsel before he confessed). See also Miranda, 384 U.S. at 448 (“Interrogation still takes place
in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact
goes on in the interrogation rooms.”).
78
This conflict most often benefited the police. See, e.g., Lisenba, 314 U.S., at 239 (refusing to set aside
findings of two courts and a jury who found a confession voluntary, despite the defendant’s claim that an
officer who earlier admitted to slapping the defendant threatened to beat him unless he confessed);
Kamisar, Fortieth Anniversary, supra note ____, at 167 (discussing “the readiness with which the lower
courts accepted police claims and the ease with which they rejected the defendant’s versions of what
happened” in the context of Davis v. North Carolina, 384 U.S. 737 (1966)).
27
techniques that some were using. 79 Perhaps most important, because the totality test put
each case on its own facts, Supreme Court review on a case-by-case basis was doing little
to offer clear guidance either to police or the lower courts. 80
Faced with these
difficulties, the Court appeared to be considering – in Escobedo v. Illinois – requiring the
presence of counsel as a safeguard. 81 But in Miranda (and its companion cases) the
Court took a different tack.
Miranda is a decision with a rule, and a rationale upon which the rule is based.
The rule is that a prosecutor “may not use” statements “stemming from custodial
interrogation” in the absence of “procedural safeguards effective to secure the privilege
against self-incrimination.” 82 The safeguards to which the Miranda Court adverted were
the now-familiar Miranda warnings. 83
The scope of the rule was clear beyond
peradventure: the Court’s plain statement about the ban on the “use” of statements meant
not only that the statements themselves were to be excluded from evidence, but so too the
79
See, e.g., Payne v. Arkansas, 356 U.S. 560, 567 (1958) (finding involuntary the confession of a “mentally
dull” 19-year-old who was held incommunicado for three days, without a hearing, and told by the police
chief that there would be ’30 or 40 people there in a few minutes that wanted to get him’ before he
confessed); Thomas v. Arizona, 356 U.S. 390, 404 (1958) (finding an oral confession voluntary because it
was obtained more than 20 hours after two involuntary written confessions given at threat of lynching when
defendant was lassoed around the neck and dragged toward a tree).
80
See Graham, Self-Inflicted Wound, supra note ___, at 161 (“[A] trial judge could pick through the
Court’s opinions and find authority for admitting almost any confession.”); Grano, Formalism, supra note
____, at 243 (characterizing the voluntariness test as making “everything relevant, but nothing
determinative.”); Kamisar, Fortieth Anniversary, supra note ____, at 168 (“[T]he test was too amorphous,
too perplexing, too subjective and too time-consuming to administer effectively.”). Cf. Illinois v. Gates,
462 U.S. 213, 239 n.11 (1983) (noting, in the context of probable cause determinations, that under the
totality test “[t]here are so many variables in the probable cause equation that one determination will
seldom be a useful “precedent” for another.”); See Leo & Thomas, Miranda Debate, supra note ___, at 17
(arguing the was “not satisfied with the way the state courts were applying the voluntariness test.”).
81
See Escobedo, 378 U.S. at 490–91. (finding the Sixth Amendment violated when an investigation
focuses on a suspect who is in custodial interrogation is denied his request for an attorney and not informed
of his right to remain silent).
82
Miranda, 384 U.S. at 444.
83
In language that ultimately would cause the Court difficulty, it stressed that its ruling was not meant to
put government into a “constitutional straitjacket,” and that the specified warnings only had to be given if
governments did not come up with and rely upon a “fully effective equivalent” (say, possibly, audio
taping). Miranda, 384 U.S. at 467.
28
“fruits” of such statements: “unless and until such warnings and waiver are demonstrated
by the prosecution at trial, no evidence obtained as a result of interrogation can be used
against him. 84 The dissenting justices acknowledged that the rule applied not only to
statements but fruits as well. 85
Miranda’s rationale was easy to follow, because the decision was structured
around it. First, the Court explained that the Fifth Amendment privilege applied in the
stationhouse. 86 While not uncontroversial, the claim did have some historical basis, and
in any event it was the Court’s clear conclusion. 87 The Amendment, it said, “is available
outside of criminal court proceedings and serves to protect persons in all settings in
which their freedom of action is curtailed in any significant way.” 88 Second, the Court
held that the process of custodial interrogation contains “inherently compelling
pressures.” 89 The emphasized word was essential to the holding. Because the Fifth
Amendment applies to police custodial interrogation, and because such interrogation is
inherently compelling, the procedural safeguards were required in every case of police
84
Miranda, 384 U.S. at 479 (emphasis supplied).
Miranda, 384 U.S. at 500 (Clark, J., dissenting) (“The Court further holds that failure to follow the new
procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits
thereof.”); id. at 545 (White, J. dissenting) (stating the decision “leaves open” in each case the question of
whether disputed evidence is the fruit of a prohibited interrogation).
86
See Miranda, 384 U.S. at 461 (“We are satisfied that all the principles embodied in the privilege apply to
informal compulsion exerted by law-enforcement officers during in-custody questioning. As a practical
matter, the compulsion to speak in the isolated setting of the police station may well be greater than in
courts or other official investigations, where there are often impartial observers to guard against
intimidation or trickery.”).
87
See Miranda, 384 U.S. at 461 (stating the question “could have been taken as settled in federal courts
almost 70 years ago”(citing Bram, 168 U.S, at 542)); Bram, 168 U.S. at 542 (“[W]herever a question arises
whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the
fifth amendment commanding that no person ‘shall be compelled in any case to be a witness against
himself.’”). But see Miranda, 384 U.S. at 511 (Harlan, J., dissenting) (arguing that “even those who would
readily enlarge the privilege” to reach the stationhouse “must concede some linguistic difficulties since the
Fifth Amendment in terms proscribes only compelling any person ‘in any criminal case to be a witness
against himself.’” ).
88
Miranda, 384 U.S. at 467.
89
Miranda, 384 U.S. at 467 (emphasis supplied).
85
29
custodial interrogation to avoid violating the Fifth Amendment’s ban on “compelled”
self-incrimination. 90
Given the Court’s subsequent decisions, it is also instructive to see what the
justices said – and did not say – about the philosophical basis for the Fifth Amendment’s
ban on compelled self-incrimination. 91 It was emphatically not a singular concern for
trustworthy or reliable confessions. Although the Court mentions this possible purpose
of the Fifth Amendment, it is an aside, in a footnote. 92 Similarly, the Miranda decision
says not one word about the need to “deter” police from failing to provide the required
safeguards. 93
Rather, the Court simply believed the Fifth Amendment required its
holding because “custodial interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals.” 94
Miranda was instantly controversial and perhaps for good reason. It is not clear
why Earl Warren, a former prosecutor and the motivating force behind the decision,
insisted on deciding the case as he did, when he did. 95 There surely was widespread
concern about the practice of police interrogation, but by the time of Miranda the
90
See Miranda, 384 U.S. at 467 (“In order to combat these pressures and to permit a full opportunity to
exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of
his rights and the exercise of those rights must be fully honored.”).
91
In fact, the Miranda decision was distinctly un-stealthy about its motives. See Graham, Self-Inflicted
Wound, supra note ____, at 178 (“Ever since 1962, when the press failed to grasp the modest reach of the
Supreme Court’s invalidation of an officially-prescribed prayer for New York public school children . . .
the Justices had taken pains in controversial opinions to state early and in simple language precisely what
the Court was doing, shorn of its legalistic reasons for doing it. When Chief Justice Earl Warren did this in
the opening paragraphs of his Miranda decision . . . .”).
92
Miranda, 384 U.S. at 456 n.24 (discussing the problem of false confessions). See also id. at 470 (stating a
“subsidiary function” of having counsel present during interrogation is that such assistance “can mitigate
the dangers of untrustworthiness.”).
93
See Miranda, 384 U.S. at 468–72 (describing the warnings as “absolute” prerequisites “in overcoming
the inherent pressures of the interrogation atmosphere” and emphasizing that “[o]ur aim is to assure that the
individual’s right to choose between silence and speech remains unfettered throughout the interrogation
process.”).
94
Miranda, 384 U.S. at 455.
95
See Schwartz, Super Chief, supra note ____, at 587–93 (examining the process of drafting the opinion).
30
American Law Institute and the American Bar Association had made good progress on a
model code governing the practice. 96 Change was in the air, and luminaries of the era
gave public addresses fairly begging the Court to hold off. 97 But Warren felt he knew
best, and pushed the Court to move ahead.
Hubris has its price. The Warren Court itself was quickly history and Miranda
played a big role in its undoing. Crime rates were rising, and both Nixon and George
Wallace made the Court and crime a major issue in their 1968 bids for the presidency,
and Nixon won. 98 Warren resigned in an attempt to allow Lyndon Johnson to fill his
seat, but Senate conservatives blocked the move for a variety of reasons, not the least of
which was some justifiable dissatisfaction with Johnson’s choice to replace him. 99
Through an odd combination of circumstances, by 1972 four of the justices were of
Nixon’s making, and all could be counted on to further his anti-crime agenda. 100
Nixon’s appointees quickly joined with Miranda dissenters in deciding two cases
that injured Miranda, one by actions and one by words. Harris v. New York involved the
96
See Graham, Self-Inflicted Wound, supra note ___, at 173–75. But note this proposal was not in line
with the recent Warren Court decisions “because it would have permitted some interrogation without
counsel.” Id. at 174. Indeed, “[I]f the ALI were to approve its plan before the Supreme Court made its
confessions decision [in Miranda], the slim Warren majority could find itself declaring a new constitutional
right that the nation’s legal establishment had only recently rejected.” Id. at 175.
97
98
On the rise in crime, see Lerman, Rights of The Accused, supra note ____, at 43 (“[T]he rate of violent
crime doubled during the 1960s, from 161 crimes per 100,000 persons in 1960 to 329 per 100,000 in
1969.”). On Nixon’s campaign, see Levy, Against The Law, supra note ___, at 3 (“In his first campaign
speech on crime Nixon left the impression that the courts were to blame for the frightening increase in the
crime rate . . . The message was clear: Permissive judges enforced the Warren Court’s strained
interpretations of the Constitution in favor of the criminal forces.”).
99
See Dean, Rehnquist Choice, supra note _____, at 2–3; Levy, Against the Law, supra note ___, at 12–13.
100
See generally Dean, Rehnquist Choice, supra note ____, (describing the events from Chief Justice
Warren’s resignation through the appointment of Justice Rehnquist). See also Graham, Self-Inflicted
Wound, supra note ___, at 306–07 (“When Richard Nixon won on a pledge to appoint men who were
‘strict constructionists’ on criminal issues, and when the new President pointedly began to appoint Justices
who seemed to fit that description, the stage was set for an early test of a President’s capacity to deliver on
a promise to change the course of the Supreme Court.”); Levy, Against the Law, supra note ____, at 139
(finding that the Burger court examined 15 self-incrimination cases in the first two years and in all but one,
“the right clamed under the Fifth Amendment lost. . . .”).
31
question of whether statements taken in violation of Miranda could be offered by the
prosecutor to impeach the testimony of the defendant should he take the stand. 101
Miranda would seem to have held no; the Court stated that the warnings were
“prerequisites to the admissibility of any statement made by the defendant.” 102 But
Nixon’s Chief Justice, Warren Burger, brushed this aside stating only “[s]ome comments
in the Miranda opinion can indeed be read as indicating a bar to the use of an
uncounseled statement for any purpose, but discussion of that issue was not at all
necessary to the Court’s holding and cannot be regarded as controlling. 103 Commentators
deemed Burger’s claim disingenuous, but there it was: unwarned statements could not be
used in the prosecutor’s case-in-chief, but could be introduced against the defendant
should he take the stand. 104
Harris was followed by Michigan v. Tucker, a decision that did little but said
much.
Tucker was authored by Associate Justice William Hubbs Rehnquist. The
question Rehnquist took up was whether evidence obtained by way of a statement made
without Miranda warnings – the “fruits” of such a statement – were nonetheless
admissible even if the statement was not. 105 As we have seen, the Miranda Court was
101
Harris, 401 U.S. at 222.
See Miranda, 384 U.S. at 472 (explaining that warning a defendant of his right to counsel is “[a]s with
the warnings of the right to remain silent and that anything stated can be used as evidence against him . . .
an absolute prerequisite to interrogation.”).
103
Harris, 401 U.S. at 224.
104
Harris, 401 U.S. at 226. On reaction from commentators, see Levy, Against the Law, supra note ___, at
152–53 “ . . . Warren in Miranda had made much more than merely ‘some comments’ that might be read to
decide the question before the Court as defined by Burger in Harris. There was nothing remotely equivocal
about what Warren had said.”); Dershowitz & Ely, Anxious Observations, supra note ___, at 1226 (“This
summary of Miranda is misleading in two respects . . . [First,] a pervasive and unambiguous aspect of
Miranda was its explicit rejection of distinctions based on the manner in which a statement is used by the
Government or the degree to which it is helpful to it . . . . [Second,] Miranda did not purport to be an
opinion limited to its precise facts. . . . Moreover, the opinion said that it was part of its ‘holding’ that an
uncounseled ‘exculpatory’ statement could not be used by the prosecution.”).
105
Tucker, 417 U.S. at 435.
102
32
unequivocal that they were not. 106 In pursuing the question in Tucker, Rehnquist rewrote
Miranda. First, he separated the Miranda rule from the Miranda Court’s actual rationale:
“We . . . first consider whether the police conduct complained of directly infringed upon
respondent’s right against self incrimination or whether it instead violated only the
prophylactic rules developed to protect that right.” 107 “Where there has been genuine
compulsion of testimony the right has been given broad scope,” claimed Rehnquist. 108
This misrepresents Miranda, which – as we have seen – plainly rested on a holding that
unwarned statements are “inherently” compelled. 109
Then, Rehnquist cast aside the
Miranda Court’s statement of its rule. “The Court said in Miranda that statements taken
in violation of the Miranda principles must not be used to prove the prosecution’s case at
trial.” 110 That requirement was complied with here, Rehnquist explained: the only issue
was the admissibility of fruits of that statement. 111 But again, the Miranda Court had
drawn no such distinction. 112
Tucker would have been a big deal – a case of stealth overruling– except that at a
critical moment the Court ducked, making all of Rehnquist’s stray verbiage dicta – a
point worth remembering. Although the warnings Tucker had been given did not comply
with Miranda, they were close, and – here’s the rub – administered before Miranda itself
was decided. 113 Rehnquist thus concluded – introducing yet another new concept not
106
See supra notes ______ and accompanying text.
(Notes & Text currently on pg.29. Search “dissenting justices acknowledged” to find corresponding text.)
107
Tucker, 417 U.S. at 439.
108
Tucker, 417 U.S. at 440.
109
Miranda, 384 U.S. at 467.
110
Tucker, 417 U.S. at 445.
111
Tucker, 417 U.S.
112
See supra notes _____ and accompanying text.
(Notes & Text currently on pg.29. Search “dissenting justices acknowledged” to find corresponding text.)
113
See Tucker, 417 U.S. at 447. (“We consider it significant to our decision in this case that the officers'
failure to advise respondent of his right to appointed counsel occurred prior to the decision in Miranda.
33
found in Miranda – that because the purpose of Miranda was to “deter” police
misconduct, it made little sense to apply the rule strictly in this case. 114 Tucker thus had
minimal impact, but maximal potential for future cases. A decade later, Tucker would
bear its own fruit.
In New York v. Quarles, some of the dicta in Tucker became law. Writing for the
Court, Justice Rehnquist relied on his prior decision to adopt a public safety “exception”
to Miranda, in the course of which he further undermined the constitutional status of the
case. 115 Quarles involved a suspect who when apprehended and frisked had an empty
shoulder holster. The police, without reading Miranda warnings, asked where the gun
was. 116 The suspect pointed out the gun’s location, and the question was whether this
unwarned statement was admissible in the prosecution’s case in chief. 117 The majority
held yes, because the need for protecting the public safety was “paramount” to the rights
protected by Miranda.118 (The record provided no evidence of a public safety problem in
the case; both the officer himself and the New York Court of Appeals had eschewed such
a rationale.) 119 Adopting the reasoning of Tucker, the Court made clear that had there
been “actual coercion” of Quarles’ statement it would have been a “constitutional
Although we have been urged to resolve the broad question of whether evidence derived from statements
taken in violation of the Miranda rules must be excluded regardless of when the interrogation took place,
we instead place our holding on a narrower ground.”).
114
Tucker, 417 U.S. at 448 (“Whatever deterrent effect on future police conduct the exclusion of those
statements may have had, we do not believe it would be significantly augmented by excluding the
testimony of the witness Henderson as well.”).
115
Quarles, 467 U.S. at 652.
116
Quarles, 467 U.S. at 652.
117
Quarles, 467 U.S at 653.
118
Quarles, 467 U.S. at 653.
119
See Quarles, 467 U.S. at 463 (“The [New York Court of Appeals] declined to recognize an exigency
exception to the usual requirements of Miranda because it found no indication from Officer Kraft's
testimony at the suppression hearing that his subjective motivation in asking the question was to protect his
own safety or the safety of the public.”).
34
imperative” to exclude the evidence from the prosecutor’s case in chief. 120 But ‘[t]he
prophylactic Miranda warnings” are not themselves “rights protected by the
Constitution.” 121 Thus, public safety trumped Miranda’s mere prophylaxis. 122 Miranda
was now reduced to a non-constitutional rule subject to being balanced away. Justice
O’Connor, concurring in the disposition of the case, indicated she would have joined the
majority opinion were it writing on a “clean slate,” but: “Miranda is now the law and, in
my view, the Court has not provided sufficient justification for departing from it.” 123
Despite her words in Quarles, Justice O’Connor herself undermined Miranda’s
constitutional status a year later, in Oregon v. Elstad. 124 In Elstad the police arrested a
juvenile in his parent’s home and obtained a confession without reading him his rights. 125
Later, at the police station, they read the rights and obtained another confession. 126 The
trial court properly suppressed the first statement, but allowed admission of the
subsequent statement, made after warnings were given. 127 One would have thought that
under classic “fruits” doctrine the second statement also would be suppressed absent
some break in the causal chain. 128 Whether reading Miranda warnings alone would
120
Quarles, 467 U.S. at 658 n.7.
Quarles, 467 U.S. at 654 (quoting Tucker, 417 U.S. at 444).
122
Quarles, 467 U.S. at 657 (“We conclude that the need for answers to questions in a situation posing a
threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's
privilege against self-incrimination.”).
123
Quarles, 467 U.S. at 660 (O’Connor, J., concurring in part).
124
470 U.S. 298 (1985).
125
Elstad, 470 U.S. at 301.
126
Elstad, 470 U.S. at 301.
127
Elstad, 470 U.S. at 302.
128
On the fruits doctrine in the Fourth Amendment, see Wong Sun, 371 U.S. at 487 (finding the “question
in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’”); Nardone, 308 U.S. at 338 (recognizing an exception
for evidence where the connection to the primary illegality has become “so attenuated as to dissipate the
taint.”); Silverthorne, 251 U.S. at 392 (recognizing an exception for evidence obtained through an
“independent source”). In the Fifth Amendment, see Murphy, 378 U.S. at 79 (holding that “the
constitutional rule to be that a state witness may not be compelled to give testimony which may be
121
35
suffice, or whether something more was required – for example, a statement from police
informing the suspect that the prior statement could not be used because there had been
no warnings – was a fair question. But Justice O’Connor – treating Tucker’s distinction
in dicta between actually-coerced and unMirandized statements as though it were law –
held that the fruits inquiry only applied to cases of actual coercion. 129
“The failure of
police to administer Miranda warnings does not mean that the statements received have
actually been coerced, but only that courts will presume the privilege against compulsory
self-incrimination has not been intelligently exercised.” 130
Still, why didn’t that
presumption apply here? Because no one was arguing the first statement should be
admitted, and that was the limit of Miranda’s scope: “Where an unwarned statement is
preserved for use in situations that fall outside the sweep of the Miranda presumption,”
the old “voluntariness” test applies. 131
Soon, a case presented the obvious question:
if Miranda was but a
“prophylactic,” and the Constitution only prohibits “actual compulsion,” then where did
the Supreme Court get off mandating the rule that state and local police officers comply
with the Miranda rule in the first place?
In the immediate aftermath of Miranda,
Congress had passed a law basically overruling Miranda and replacing it with the prior
incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner
by federal officials in connection with a criminal prosecution against him.”).
129
See Elstad, 470 U.S. at 309 (“It is an unwarranted extension of Miranda to hold that a simple failure to
administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to
undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent
voluntary and informed waiver is ineffective for some indeterminate period . . . . [T]he admissibility of any
subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily
made.”).
130
Elstad, 470 U.S. at 310.
131
Elstad, 470 U.S. at 307–08.
36
“voluntariness” analysis. 132
The statute had lain dormant, because no one at the
Department of Justice was anxious to test its constitutionality. 133 But the Fourth Circuit,
its way well-paved by Quarles and Elstad (and some other cases not discussed here),
decided to move the question front and center: if Miranda was not constitutional, then
surely Congress could replace the decision with the old constitutional test. 134
Thus confronted, the Court “resolved” Miranda’s constitutional status by
reaffirming the seminal decision. In Dickerson v. United States, by a 7-2 vote, the Court
held the congressional statute unconstitutional. 135
None other than Chief Justice
Rehnquist wrote for the Court majority. 136 Seemingly recanting his position in cases
such as Tucker and Quarles, he described Miranda as “constitutional decision” holding
that because of the “coercion inherent in custodial interrogation” “certain warnings must
be given before a suspect’s statement made during custodial interrogation could be
admitted into evidence.” 137 Moreover, the Court declined to overrule Miranda in light of
132
18 U.S.C. § 3501 (2006). On the statute’s enactment, see Graham, Self-Inflicted Wound, supra note ___,
at 319–30 (“The supporters of [§ 3501] made little effort to disguise their intent to blackjack the Court into
changing its course. In private, Senator McClellan called it ‘my petition for a rehearing’ on Miranda.”).
133
In 1969, the Justice Department issued a memorandum defending the statute. See Kamisar, Overrule
Miranda, supra note ___, at 925–27. However, this support quickly ended. See Davis v. United States, 512
U.S. 452, 463–64 (Scalia, J., concurring) (“[W]ith limited exceptions the provision has been studiously
avoided by every Administration, not only in this Court but in the lower courts, since its enactment more
than 25 years ago.”).
134
See United States v. Dickerson, 166 F.3d 667, 672 (4th Cir. 1999) (“Congress has the power to overrule
judicially created rules of evidence and procedure that are not required by the Constitution. Thus, whether
Congress has the authority to enact § 3501 turns on whether the rule set forth by the Supreme Court in
Miranda is required by the Constitution. Clearly it is not.” (internal citations omitted)).
135
Dickerson, 530 U.S. at 432.
136
On the apparent unlikelihood of Rehnquist upholding Miranda, see Katz, supra note____, at 333.
(“[F]rom Tucker to Dickerson, [Rehnquist] participated in a total of fifty-seven major Miranda-related
cases. Arguably in all of these cases, the Chief either voted to distinguish or limit the scope of the 1966
ruling. In case after case, the Miranda doctrine found no friend in William Rehnquist.”).
137
Dickerson, 530 U.S. at 431–32. Compare Quarles, 467 U.S. at 654 (“The prophylactic Miranda
warnings therefore are “not themselves rights protected by the Constitution but [are] instead measures to
insure that the right against compulsory self-incrimination [is] protected.” (quoting Tucker, 417 U.S. 433)).
37
stare decisis. 138 Prior case law had not undermined the decision, the Court explained, and
it was by now embedded in the “national culture.” 139 The Chief Justice conceded that
language in prior opinions suggested that Miranda was not of constitutional dimension,
but were that the case he pointed out then neither Miranda nor subsequent decisions
could have applied it to the states. 140 Despite all this, however, the prior decisions in
Tucker, Quarles and Elstad were not overruled. 141 Rather than explain, the Chief Justice
simply stated that they – as well as some other decisions extending Miranda – simply
demonstrated that “no constitutional rule is immutable.” 142
Justice Scalia wrote a fraught dissent in Dickerson sounding precisely the themes
he sounded in the 2006 stealth overruling cases. After decisions like Quarles and Elstad
it was “simply no longer possible for the court to conclude, even if it wanted to, that a
violation of Miranda’s rules is a violation of the Constitution.” 143
Of course rules are
mutable and can be modified: “The issue is whether, as mutated and modified, they must
make sense.”144 “The requirement that they do so is the only thing that prevents this
Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to
whatever outcome, case by case, suits or offends its collective fancy.” 145
Scalia’s
constant taunt was that the majority would not come out and say directly the one thing
that mattered here:
that the Constitution actually required Miranda warnings (or a
138
See Dickerson, 530 U.S. at 443 (“Whether or not we would agree with Miranda’s reasoning and its
resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh
heavily against overruling it now.”).
139
Dickerson, 530 U.S. at 443.
140
Dickerson, 530 U.S. at 438–39.
141
Indeed, Rehnquist recasts the effect of these decisions. See Dickerson, 530 U.S. at 443–44 (“If
anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement
while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the
prosecution’s case in chief.”).
142
Dickerson, 530 U.S. at 441.
143
Dickerson, 530 U.S. at 543–54 (Scalia, J., dissenting)
144
Dickerson, 530 U.S. at 455 (Scalia, J., dissenting).
145
Dickerson, 530 U.S. at 455 (Scalia, J., dissenting).
38
procedural equivalent.) 146 The only way the prior cases and the Dickerson opinion could
be squared, Scalia insisted, was by adopting the one position the Court refused to discuss:
that it had the constitutional power to adopt “prophylactic” rules and impose them on the
states. 147
How to explain the Chief Justice writing this Miranda-reaffirming decision?
Some speculated it was Rehnquist’s new-found maturity; no longer the young firebrand,
his job as Chief Justice was to help reach consensus. 148 Others suggested Miranda won
out in what was really a larger fight that pitted judicial and congressional supremacy
against one another. 149 But in retrospect the best explanation is that the Chief Justice –
who lacked the votes to overrule Miranda and thus would have been expected to be in the
dissent in Dickerson – voted with the majority only so he could control the content of the
majority opinion. 150 Had another justice written Dickerson, the Court might overruled
146
Dickerson, 530 U.S. at 445 (Scalia, J., dissenting) (“One will search today's opinion in vain, however,
for a statement (surely simple enough to make) that what 18 U.S.C. § 3501 prescribes - the use at trial of a
voluntary confession, even when a Miranda warning or its equivalent has failed to be given - violates the
Constitution.”).
147
See Dickerson, 530 U.S. at 456 (Scalia, J., dissenting) (“[B]y asserting that Miranda does apply against
the States, is to assume precisely the point at issue. In my view, our continued application of the Miranda
code to the States despite our consistent statements that running afoul of its dictates does not necessarily —
or even usually — result in an actual constitutional violation, represents not the source of Miranda's
salvation but rather evidence of its ultimate illegitimacy.”).
148
See, e.g., Jeffrey Rosen, Rehnquist the Great, The Atlantic Monthly, April 2005, available at
http://www.theatlantic.com/doc/200504/rosen. (“Rehnquist's evolution from Miranda's leading critic to its
improbable savior infuriated conservatives and confused liberals; but in fact it was emblematic of his
career. . . . [L]iberals have never understood how significantly and frequently Rehnquist departed from
doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was
more effective than the rigid purity of Scalia and Thomas.”).
149
See Linda Greenhouse, A Turf Battle’s Unlikely Victim, N.Y. Times, June 28, 2000, at A20. (“There
might well have been a period, sometime in the last three decades, when the court would have overturned
Miranda, a bitterly fought 5-to-4 decision that had appeared ever since to have an ever more fragile hold on
the court's loyalties. But it was the bad fortune of opponents finally to get the justices' attention at the very
moment when the court's interest in protecting its constitutional turf against Congressional incursions was
at a peak unmatched in recent years.”); Hudson, supra note ____ at (quoting James W. Hundley, who
argued the case for Dickerson, as saying “[Rehnquist] was not about to write an opinion that would limit
the independence of the judiciary. . . . His point was that only the Court can overrule Miranda.”).
150
See Katz, supra note ____, at 335 (arguing that Justices O’Connor and Kennedy were “initially in the
pro-Miranda majority. This reduced [Rehnquist’s] feasible set, leaving him with one remaining question:
39
decisions like Quarles and Elstad as unsustainable in light of the reaffirmation of
Miranda’s constitutional status. 151 By writing for the majority as he did, the Chief
Justice “saved” those intervening decisions.
By saving the Miranda progeny, the Chief Justice set the stage for Miranda’s
effective overruling. 152 Prior to Dickerson one could argue that Miranda still stood, even
though its logic was severely undermined, and Harris had deprived the rule of some
utility. 153 Still, Harris, Quarles and Elstad purported to be merely “exceptions.” 154 In
Siebert and Patane, however, the Court shredded whatever was left of Miranda’s
rationale, and the rule itself was reduced to the narrowest of applications – basically, to
its facts.
Superficially, Missouri v. Siebert looked to follow Miranda, not undercut it.
Siebert arose out of police practices that developed in the aftermath of Oregon v. Elstad.
Some police and prosecutors took Elstad as license to question suspects “outside of”
whether to vote with the majority and thereby secure for himself the assignment decision or allow that
authority to be exercised by Justice Stevens.”_).
151
See Cassell, Paths Not Taken, supra note ____ at 899 (“The description of Miranda as a “constitutional
rule” was sufficient to achieve the Court's apparent twin aims: striking down § 3501 while leaving in place
its various decisions crafting exceptions to Miranda.”); Katz, supra note ___ at 338 (“With the apparent
elevation of Miranda to a fully constitutional status, the exceptions that had been built upon Miranda’s subconstitutional foundation stood in peril. Justice Stevens, the alterative opinion assignor, had a long history
of resisting the Miranda exceptions. After spending nearly thirty years crafting limitations to Miranda, it is
hard to believe the Chief would allow Justice Stevens the opportunity to undo his legacy.”).
152
See Katz, supra note ____ at 339 (calling Rehnquist’s statement in Dickerson that “our subsequent cases
have reduced the impact of the Miranda rule on legitimate law enforcement while re-affirming the
decision’s core ruling” the “Trojan horse” of the decision and arguing Rehnquist “crafted the very language
which would later be used to argue that all of the exceptions are part of his constitutional decision.”).
153
On the impact of Harris, see Levy, Against the Law, supra note ____, at 162 (“Harris did not overrule
Miranda. Harris throttled Miranda, circumvented it, excepted it, and invited law-enforcement agencies to
do the same; more, it provided with them with advantages for doing the same.”).
154
See Dickerson, 530 U.S. at 429 (“A contrary conclusion is not required by the fact that the Court has
subsequently made exceptions from the Miranda rule . . . . No constitutional rule is immutable, and the sort
of refinements made by such cases are merely a normal part of constitutional law.” (citing Quarles, 467
U.S. 649)).
40
Miranda.155 In other words, they would intentionally fail to deliver Miranda warnings,
obtain a confession, then read the warnings and obtain a second statement. This was not
necessarily what Elstad had held. In that case there was at least the argument that the
first statement was obtained without an intentional violation of Miranda: the situation
had evolved rapidly under a unique set of circumstances involving the minor’s parents’
presence in the house. 156 But after Elstad, some police forces adopted an official policy –
occasionally on the guidance of prosecutors – of obtaining a confession before reading
warnings, then getting a second supposedly valuable one. 157
Although the Court in Siebert seemed at times to want to rule out this practice of
questioning outside Miranda, its fractured majority in effect instructed police on how to
ignore Miranda when doing so furthered their purposes.
Justice Souter wrote the
plurality opinion, which, despite its disdain for it, contains no clear condemnation of the
practice of questioning outside Miranda. Rather, the plurality would have lower courts
apply a multi-factored test in each case to determine whether the reading of the
intervening Miranda warnings can “function effectively as Miranda requires . . . to
advise the suspect that he had a real choice about giving an admissible statement at that
juncture.” 158 Souter did say that given the very object of “questioning first” is to obtain
the second statement it is difficult to imagine that the warnings could operate in this
155
See Weisselberg, Saving Miranda, supra note _____, at 111–12 (“Questioning ‘outside Miranda’ stems
naturally from the Supreme Court’s decisions that pull Miranda from its constitutional base and provide
officers an incentive to disobey Miranda’s rules.”).
156
Elstad, 470 U.S. at 300–01.
157
See Weisselburg, Saving Miranda, supra note ___, at 132–40 (reviewing training materials on
questioning “outside Miranda” and quoting one prosecutor as telling police the practice “forces the
defendant to commit to a statement that will prevent him from pulling out some defense and using it at trial.
. . . So if you get a statement ‘outside Miranda’ and he tells you that he did it and how he did it or if he
gives you a denial of some sort, he’s tied to that, he is married to that. . . .”)
158
Siebert, 542 U.S. at 611–12; See also id. at 615 (listing factors that “bear on whether Miranda warnings
delivered midstream could be effective enough to accomplish their object.”)
41
way. 159 But it is easy to see how police could take Souter’s multi-factored test, which
looks at things such as the time between confessions and the reliance in the later
questioning on the prior confession, and work around it to continue to question outside
Miranda – i.e., ignore Miranda’s requirement that warnings “must” be read and that any
statement taken outside them is inherently compelled. 160
The concurring opinions, which, given the fractured majority, might well be
interpreted to govern future cases, ultimately also serve as a guide to police on how to
violate Miranda and still obtain an admissible confession. 161 Some courts read Justice
Kennedy’s opinion concurring in the judgment as binding. (As we will see, the lower
courts are not uniform on this, in part because seven justices opposed Kennedy’s
solution.) 162
Justice Kennedy also was plainly annoyed by the “deliberate” use of
questioning-first, which led him to focus on a “bad faith” test. 163 But Justice Kennedy’s
general distaste for Miranda overcame his annoyance at the police ignoring judicial rules.
Hence, even when bad faith — i.e. deliberate circumventing of Miranda — was present,
Justice Kennedy still allowed a second statement to be admitted if “curative measures”
were taken “designed to ensure that a reasonable person in the suspect’s situation would
159
Siebert, 542 U.S. at 613.
Justice O’Connor’s dissent in Siebert similarly would sweep Miranda away, to be replaced by the old
common law totality of the circumstances voluntariness test. According to Justice O’Connor, if the police
engage in “questioning outside” Miranda, and obtain two statements, the second statement is only
inadmissible if it was involuntary (despite the interjection of Miranda warnings), or if the first statement
was involuntary and its taint had not dissipated when the second was made. Because Miranda is not a
constitutional rule, Justice O’Connor argued, (and never mind Dickerson), no fruit of the poisonous tree
analysis applies to the second statement. Rather, the question is simply whether the first and second
statements are voluntary. Siebert, 542 U.S. at 628 (O’Connor, J, dissenting).
161
On the status of concurring opinions, See Marks [RA fill in cite]; see infra at ___. Justice Breyer
appeared most eager to save Miranda in that he would look only to bad faith in deciding whether the
subsequent decision should be admitted. Siebert, 542 U.S. at 617 (Breyer, J., concurring). But lower courts
have not found his opinion to be determinative of the law. See infra Part IV.A.
162
See infra Part IV.A.
163
Siebert, 542 U.S. at 622 (Kennedy, J., concurring).
160
42
understand the import and effect of the Miranda warning and the Miranda waiver.” 164
These curative measures included such items as “a substantial break in time and
circumstances” or “an additional warning.” 165
Like the plurality opinion, Justice
Kennedy’s concurrence provided instructions to police on how to avoid Miranda, rather
than a rule forbidding them from doing so.
Alongside Siebert’s instruction manual on how to violate Miranda, United States
v. Patane practically provided police with an engraved invitation to ignore Miranda at
will. 166 By the time the Court in Patane was done, it was difficult as a matter of police
incentives to see what force Miranda still held in many cases. 167 (As we will see shortly,
police quickly figured this out.) 168 The issue in Patane was that ducked in Tucker years
earlier: whether fruits of an un-Mirandized statement are admissible. 169 The defendant
in the case, who was not read his Miranda rights, led the police to a gun he possessed
illegally. 170 The Court held that fruits of a confession obtained in violation of Miranda
are admissible, again by fractured opinion. 171 But however one reads the splintered
Court, Miranda suffered mortally.
Justice Thomas’s opinion for the Patane plurality failed to do what it endeavored:
to explain why admitting the fruit of an unwarned confession is consistent with Miranda.
164
Siebert, 542 U.S. at 622 (Kennedy, J., concurring).
Siebert, 542 U.S. at 622 (Kennedy, J., concurring).
166
U.S. v. Patane, 542 U.S. 630 (2004).
167
Some scholars have argued Miranda holds no force after Patane. See, e.g., Thompson, Evading Miranda,
supra note ____, at 683 (“Seibert and Patane have finally done it: Even deliberate violations of Miranda
can yield admissible statements and admissible physical fruits of such statements due to the question-first
strategy and the approved curative measures. Thus, there is truly nothing left of Miranda.”).
168
See infra part IV.B.
169
See supra notes _____ and accompanying text.
(Notes & Text currently on page 33 Search “at a critical moment the court ducked” to find corresponding
text.)
170
Patane, 542 U.S. at 635. The defendant actually seemed to have waived the reading of Miranda
warnings, interrupting the officer to say he knew his rights. Patane, 542 U.S. at 635. The case could easily
have been put on these grounds, highlighting the interest of the present Court in curtailing Miranda.
171
Patane, 542 U.S. at 644.
165
43
It is not easy explaining a result completely antithetical to the precedent it claims to
follow. Although the Miranda Court’s assumption that exclusion of fruits would be
within its holding – an assumption the dissenters accepted – still, strictly speaking the
core holding of Miranda may have applied only to exclusion of the interrogation itself. 172
Nonetheless, for forty years the assumption had been that fruits were excluded. Tucker
had raised questions on this score, and Justice O’Connor had revived the issue in
Quarles.173 But she was writing alone, and Tucker itself had lain dormant for thirty
years.
Justice Thomas’s plurality opinion seriously distorted Miranda. Miranda, it turns
out, contrary to the flat language in Dickerson that the warnings “must” be read, is not a
rule governing police conduct (rather than the introduction of evidence at trial), and the
mere failure to read the warnings violates no rights. 174 (At times the opinion seems to
suggest the Fifth Amendment applies neither to police interrogation nor to
“nontestimonial” evidence, two things long settled.) 175 The really striking thing about the
Thomas opinion was that he wrote it and Justice Scalia signed it, given their
172
See supra notes _____ and accompanying text.
(Notes & Text currently on pg.29. Search “dissenting justices acknowledged” to find corresponding text.)
173
On Tucker, see supra notes _____ and accompanying text. See also Quarles, 467 U.S. at 668 (O’Connor,
J., concurring in part) (arguing a suspect’s statement about the location of a gun be suppressed but not the
gun itself, because “nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence
derived from informal custodial interrogation. . . .”
(Notes & Text currently on page 32–33. Search “evidence obtained by way of” to locate corresponding
text.)
174
Patane, 542 U.S. at 637 (“The Miranda rule is not a code of police conduct, and police do not violate the
Constitution (or even the Miranda rule, for that matter) by mere failures to warn.”).
175
Compare Patane, 542 U.S. at 642 (“Potential violations occur, if at all, only upon the admission of
unwarned statements into evidence at trial.”) with Miranda, 384 U.S. at 467 (“Today, then, there can be no
doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to
protect persons in all settings in which their freedom of action is curtailed in any significant way from
being compelled to incriminate themselves.”).
44
condemnation in Dickerson of dismissing precedents without overruling them
explicitly. 176
Despite its confusing rationale, the thrust of Justice Thomas’s plurality opinion is
clear: it returns Fifth Amendment law to its focus on voluntariness. “Introduction of the
nontestimonial fruit of a voluntary statement . . . does not implicate the SelfIncrimination Clause.” 177 What about the Miranda rule itself? “[I]t must be remembered
that statements taken without sufficient Miranda warnings are presumed to have been
coerced only for certain purposes and then only when necessary to protect the privilege
against self-incrimination.” 178 This would seem to conflict squarely with Miranda’s
holding that such statements were “inherently” compelled, and that their admission was
prohibited precisely to protect that privilege. But the implication is clear, even if the
reasoning is not.
Whereas Justice Thomas said too much in trying to find something to justify the
Patane rule, Justice Kennedy (joined by Justice O’Connor) adopted a pure result-oriented
approach. In Elstad, Quarles and Harris, Justice Kennedy wrote, evidence obtained in
violation of Miranda was admitted. 179 “This result was based in large part on our
recognition that the concerns underlying the Miranda rule must be accommodated to
other objectives of the criminal justice system.” 180
Having turned Miranda into a
balancing test, exclusion could not be justified by “a deterrence rationale sensitive to both
law enforcement interests and a suspect’s rights during an in-custody interrogation.” 181
176
See supra notes _____ and accompanying text.
(Notes & Text currently on page 35; search “Justice Scalia wrote” to find corresponding text.”)
177
Patane, 542 U.S. at 643.
178
Patane, 542 U.S. at 644.
179
Patane, 542 U.S. at 644 (Kennedy, J., concurring).
180
Patane, 542 U.S. at 644 (Kennedy, J., concurring).
181
Patane, 542 U.S. at 645 (Kennedy, J., concurring).
45
The problem, of course, is that all this might have been said about Miranda itself. Justice
Kennedy’s reasoning would apply to any confession the trustworthiness of which was not
in doubt, and that is distinctly not what Miranda held.
Miranda had a rule. The prosecution was not to “use” unwarned statements – and
for the Miranda Court and for the next forty years this included as a means of obtaining
admissible fruits. 182
And Miranda had a rationale:
unwarned statements made in
response to police custodial interrogation were “inherently” compelled. 183 Moreover,
Miranda was based in an understanding of the Fifth Amendment that had virtually
nothing to do with trustworthiness or deterrence. 184 Every bit of this is now gone:
trustworthiness and deterrence have become the rationale for the Miranda rule, and under
that rationale police are invited to take statements without Miranda warnings and use
them to obtain later statements or physical evidence. 185 (Were the first statement in fact
182
Miranda, 384 U.S. at 479.
See Miranda, 384 U.S. at 468–72 (holding the warnings are “absolute” prerequisites “in overcoming the
inherent pressures of the interrogation atmosphere.”).
184
See Miranda, 384 U.S. at 457–58 (describing coercive interrogations as “destructive of human dignity”
and finding “[t]he current practice of incommunicado interrogation is at odds with one of our Nation’s most
cherished principles – that the individual may not be compelled to incriminate himself. Unless adequate
protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement
obtained from the defendant can truly be the product of his free choice.”). But see Pizzi & Hoffman,
Miranda’s Pulse, supra note ___, at 844 (“By mixing up the truth-finding and anti-overreaching policies
behind the Due Process Clause’s traditional voluntariness inquiry with the decidedly truth-indifferent and
overreaching-indifferent policies of the Self-Incrimination Clause, the Miranda Court created a hybrid with
the worst aspects of both.”).
185
By tethering Miranda to a deterrence rationale, the Court contracts the doctrine. See, e.g., Patane, 542
U.S. at 642 (“Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the
Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn,
nothing to deter.”); Siebert, 542 U.S. at 634 (O’Connor, J., dissenting) (stating that because “This Court has
made clear that there simply no place for a robust deterrence doctrine with regard to violations of Miranda .
. .” the traditional fruits of the poisonous tree doctrine does not apply to Miranda violations.”); Elstad, 470
U.S. at 308 (“[T]he absence of any coercion or improper tactics undercuts the twin rationales —
trustworthiness and deterrence — for a broader rule.”); Harris, 401 U.S. 225, (“Assuming that the
exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the
evidence in question is made unavailable to the prosecution in its case in chief.”); Tucker, 417 U.S. at 448
(explaining, in holding on the narrower ground that the interrogation had occurred before Miranda, that
“[w]hatever deterrent effect on future police conduct the exclusion of those statements may have had, we
do not believe it would be significantly augmented by excluding the testimony of the witness . . . .”).
183
46
compelled, the outcome would be different.) Neither Miranda’s original rule, nor its
rationale, stands.
Taken together, Siebert and Patane invite police officers to simply ignore
Miranda.186 Any confession obtained may well lead the police to physical evidence
sufficient to convict. And if not, the two-step methodology is likely to pry loose a
confession that under the factor analysis of the Siebert plurality or Justice Kennedy’s
opinions would be admissible. Miranda once provided an incentive not to question
without administering warnings, but that incentive has been completely undermined. Sic
transit Miranda. 187
B.
Stare decisis and Miranda
But maybe Miranda should be overruled. Under the factors employed by the
Supreme Court to determine whether overruling is appropriate despite the rule of stare
decisis, there is a good argument that Miranda should be. If Miranda was an apt case for
overruling, and effectively has been overruled, this raises the ultimate questions of why
the Court did so by stealth, and what the costs of doing so have been.
The Court frequently reminds us that adherence to precedent is not an “inexorable
command.” 188
Particularly in constitutional cases, the justices emphasize, undue
insistence on the principle of stare decisis would tether the country to judicial
186
See, e.g, Thompson, Evading Miranda, supra note ____, at 670 (“The cumulative effect of the Court's
jurisprudence has been to free interrogators to obey or disobey Miranda's strictures depending on the
balance of advantages and disadvantages.”)
187
See Kamisar, Fortieth Anniversary, supra note ____, at 203 (“As Dickerson demonstrates, a majority of
the Court is unwilling to overrule Miranda (or to let Congress do so). As Patane makes plain, however, a
majority is also unwilling to take Miranda seriously. That is the sad reality-forty years after Miranda.”);
Thompson, supra note ____, at 647 (“Seibert and Patane represent the coup de grace for the demise of
Miranda.”); Weisselburg, Mourning Miranda, supra note _____, at 1521 (“In the more than four decades
since Miranda was decided, the Supreme Court has effectively encouraged police practices that have gutted
Miranda's safeguards, to the extent those safeguards ever truly existed. The best evidence now shows that,
as a protective device, Miranda is largely dead. It is time to ‘pronounce the body,’ as they say on television,
and move on.”).
188
See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991).
47
interpretations of the Constitution absent the rare and difficult event of a constitutional
amendment. 189 Assuming the judiciary got the question wrong in the first place, this
would be an unacceptable state of affairs.
In truth, the question of whether to overrule a prior precedent requires a delicate
analysis. On the one hand, the justices are perfectly well aware that it is unseemly for
them to constantly change the meaning of the Constitution. 190
There is particular
sensitivity when doing so seems only to reflect a change in membership on the Court. 191
On the other hand, there is this problem of being stuck with wrong decisions if the
justices do not displace them. 192
The justices thus walk a fine line in overruling
189
See Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (plurality opinion) (citing the Court’s “considered
practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases”); Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393, 407 (1932) (Brandeis, J., dissenting) (“in cases involving the
Federal Constitution, where correction through legislative action is practically impossible, this court has
often overruled its earlier decisions”).
190
As Justice Jackson once remarked, “moderation in change is all that makes judicial participation in the
evolution of the law tolerable.” Jackson, Decision Law and Stare Decisis, supra note ___, at 334. See also
Payne, 501 U.S. at 853-54 (Marshall, J., dissenting) (arguing that the cavalier treatment of precedent
diminishes the Court’s legitimacy and invites defiance by state actors); Dunn, How Judges Overrule, supra
note ___, at 506 (“Every time the Court engages in the performative utterance of overruling, it threatens the
very legitimacy that gives it the power to rule”); Israel, Art of Overruling, supra note ___, at 218 (an early
analysis of the techniques by which judges overrule, motivated by the observation that “the overruling
decision represents a source of danger to both professional and popular acceptance of the Court as the
disinterested interpreter of the Constitution.”
191
Many arguments for stare decisis emphasize its role in fostering a rule of law, rather than of individuals.
Earl Maltz made this point when, condemning frequent overrulings, he remarked that public acceptance of
the Court depended on “the public perception that in each case the majority of the Court is speaking for the
Constitution itself, rather than simply for five or more lawyers in black robes.” Maltz, Death of Stare
Decisis, supra note ___, at 484. See also Payne, 501 U.S. at 850-52 (Marshall, J., dissenting) (proclaiming
“the Court’s own personnel” is all that has changed since the decision of Booth, here overruled, and that
overruling under such circumstances threatens the “conception of the judiciary as a source of impersonal
and reasoned judgments”); Vasquez v. Hillary, 474 U.S. 254, 265 (noting that stare decisis “permits society
to presume that bedrock principles are founded in the law rather than in the proclivities of individuals”);
Dunn, How Judges Overrule, supra note ___, at 493-94 (observing that judicial legitimacy depends on the
rule of law transcending the personality of individual judges, and arguing that stare decisis serves this
goal); Maltz, Nature of Precedent, supra note ___, at 371 (discussing the ability of stare decisis to foster
the appearance of justice by rendering judicial decisions impersonal). But see Rehnquist, Power, supra
note ___, at 355 (expressing dubiousness that overruling detracts from legitimacy, and suggesting that “the
results of a survey of public opinion taken after an overruling, or series of overrulings, would most likely
depend on the popularity of the substantive change in the law.”
192
The Casey dissenters had much to say on this point. See Casey, 505 U.S. at 963-64 (Rehnquist, C.J.,
concurring in part and dissenting in part) (“The Judicial Branch derives its legitimacy, not from following
public opinion, but from deciding by its best lights whether legislative enactments of the popular branches
48
precedents. This is especially the case when they consider the cumulative effect of
overruling decisions, and the impression this leaves in the public mind. 193
The Court’s factors for assessing when overruling is appropriate reflect these
concerns.
Although these factors seem to have changed over time, and get stated
differently in different cases, at their heart there are four. The Court asks whether a rule
has proven unworkable, whether subsequent legal developments have made the rule
idiosyncratic and contrary to the texture of the law, whether subsequent factual
developments have rendered it perverse, and whether reliance interests justify adherence
nonetheless. 194
Reliance, which has had its own curious history of late, can be moved off the
table immediately. Traditionally, reliance spoke to interests of “property or contract
rights.” There was some sense to this. When retrospective, tangible harms followed
judicial overruling, caution was warranted before doing so. Think here of institutions or
even physical buildings that would have to be altered or eliminated in light of new
of Government comport with the Constitution.) and id. at 999 (Scalia, J., concurring in the judgment in part
and dissenting in part) (accusing the majority of “stubbornly refus[ing] to abandon an erroneous opinion”
merely to show its imperviousness to popular opinion). Justice Roberts gently adverted to the necessity of
overruling bad precedents in his confirmation hearings. Having acknowledged the “jolt to the legal system“
caused by overruling, he observed that “the principles of stare decisis recognize that there are situations
when that's a price that has to be paid. Obviously, Brown v. Board of Education is a leading example,
overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions. Those
were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with
stability and predictability. But the other arguments that intervening precedents had eroded the authority of
those cases, that those precedents that were overruled had proved unworkable, carried the day in those
cases.” U.S. Sen. Judiciary Comm. Hearing on the Nomination of John Roberts to be Chief Justice of the
Supreme Court (2005) (statement of Judge Roberts) at 2005 WL 2214702.
193
See Casey, 505 U.S. 833, 866 (fretting about the existence of “a point beyond which frequent overruling
would overtax the country's belief in the Court's good faith”). See also Peters, Under-the-Table Overruling,
supra note ___, at 1090-92 (discussing the possibility that under-the-radar overrulings serve to maintain
judicial legitimacy while doing away with disfavored precedents).
194
See Casey, 505 U.S. at 854-55 (listing workability, reliance, legal evolution, and change in
circumstances as factors to be considered in overruling); Gant, 129 S.Ct. at 1728 (Alito, J, dissenting)
(listing as factors reliance, circumstantial change, workability, evolution of surrounding caselaw, and the
quality of reasoning of the precedent); Payne, 510 U.S. at 827-30 (citing quality of reasoning, how many
votes the precedent garnered, and whether the precedent has “defied consistent application by the lower
courts”).
49
rulings.
The idea of reliance was broadened considerably in Casey v. Planned
Parenthood, in which the Court held it encompassed women’s reliance on the availability
of abortion as a means of structuring their place in society. 195 Recent criminal procedure
decisions stretched the concept even more:
In these cases, some of the justices
maintained that if police had been trained in light of a constitutional ruling, then reliance
would preclude changing that ruling. 196 It seems difficult to justify police training as a
basis for adhering to an erroneous constitutional rule that deprives people of
constitutional liberty, given that retraining in light of legal developments (such as Elstad)
occurs regularly. 197
None of this is any worry with regard to Miranda, however, for overruling it
would require undoing nothing. Overruling Miranda would not mean that police forces
had to stop giving the warnings; only that they could. 198 True, criminal defendants might
no longer get the warnings, but if Miranda is an appropriate case for overruling, there
was no entitlement in the first place. When it comes to overruling Miranda, reliance is of
no moment. 199
195
See Casey, 505 U.S. at 855-56.
See Gant, 129 S.Ct. at 1728 (Alito, J. dissenting) (finding reliance in the prior training of police
officers); Gant, 129 S.Ct. at 1723 (interpreting Dickerson as emphasizing society’s reliance on the rights
protected by Miranda, not the interests of police); Montejo, 129 S.Ct. at 2089 (dismissing any reliance
interests by police officers and by the public at large); Montejo, 129 S.Ct. at 2098 (Stevens, J. dissenting)
(calling the majority’s dismissal of defendant’s reliance “flippant” and arguing the reliance interest of the
general public is “worthy of greater consideration.”).
197
. See Gant, 129 S.Ct. at 1723 (“If it is clear that a practice is unlawful, individuals’ interest in its
discontinuance clearly outweighs any law enforcement ‘entitlement’ to its persistence.”). See also supra
notes ____ and accompanying text (discussing police training in the wake of Elstad).
(Notes & Text currently on page 40; search “some police and prosecutors took Elstad as a license” to find
corresponding text).
196
198
199
Cf. Montejo, 129 S.Ct. at 2089 (“Of course it is likely true that police and prosecutors have been trained
to comply with Jackson, but that his hardly a basis for retaining it as a constitutional requirement. If a state
wishes to abstain from requesting interviews with represented defendants when counsel is not present, it
may obviously continue to do so.”).
50
On the other hand, subsequent legal developments suggest overturning Miranda
would be altogether appropriate. That was precisely the point of the last section – that
Miranda had effectively been overruled anyway. 200 In any case of stealth overruling, this
factor by definition will be met. Miranda has been reduced to nothing more than a rule
that if a suspect’s statement is taken without warnings but is nonetheless voluntary, that
statement may not be admitted in the prosecution’s case-in-chief. However, it can be
used to impeach the defendant’s statements, 201 to extract a second statement after reading
Miranda warnings, 202 or to obtain physical evidence condemning the defendant. 203 Any
germinal development of Miranda has been squelched, and even its most logical
consequences curtailed. The Court has handed police every incentive to violate the rule,
and as will be evident shortly, many do. 204 Subsequent developments have thus undercut
the basis for Miranda substantially.
As to whether Miranda is “workable,” this is complicated given that the Court
itself has done the most to hobble the functioning of Miranda.
Time has proven
effervescent any concern that it was difficult for police officers to read Miranda
warnings. Studies have shown that police could and did read the warnings regularly to
suspects. 205 There undoubtedly were gray areas as to when Miranda applied, as there are
200
See supra Part II.A.
Harris, 401 U.S. at 226.
202
Siebert, 542 U.S. at 615–17.
203
Patane, 542 U.S. at 644.
204
See infra, Part IV.B.
201
205
See Zalman & Smith, supra note ____, at 909 tbl.2 (finding, in a survey of 99 large police departments,
86.9% of respondents found Miranda did not make it difficult for police to do their jobs). See also Cassel &
Hayman, Interrogation in the 1990s, supra note ___, at 880 (reporting at most a noncompliance rate of 2
percent in a survey of 173); Leo, Interrogation Room, supra note ____, at 267 (stating that detectives read
Miranda warnings from a standard form before “virtually every interrogation” he observed); Thomas,
Stories, supra note ___, at 1975–76, (finding a compliance rate of 95 percent in a survey of 211 cases, and
finding only 6 percent of defendants challenged law enforcement claims that Miranda warnings were
51
with any case, even one establishing a bright-line rule. Still, this is generous to any
police concerns about Miranda’s clarity: gray can be avoided by staying away from the
line, which would require police only to do what they know well (but may prefer not to
do). And though some confessions undoubtedly are lost because of Miranda, the data
here shows it is a relatively small number. 206
The real problem with Miranda’s
workability has come from the fact that the Court has distorted the rule and its rationale.
It is the Court itself that has muddied the clarity of the Miranda rule. 207
Nonetheless, there is a growing consensus on the left and the right alike that
Miranda has proven a “spectacular failure” in that a doctrine designed to empower
criminal suspects now favors the police in its very application. 208 Before exploring this
important point, a caveat is in order. The perverse effects of today’s Miranda were not
foreordained, nor are they independent of the Court’s own decisionmaking. Miranda
could have worked. 209 But there seems little will to make it work, and whatever support
Miranda enjoys among some of the justices might exist precisely because Miranda may
now hurt those it was designed to help.
It is not easy to say exactly what the Warren Court thought Miranda would
accomplish. The decision identified an evil and offered a solution, but said little about
administered but noting shortcomings of survey that relied on appellate records with likely reporting biases
because in a conflict between police and defendants judges were more likely to belief police).
206
See infra note ____.
(Note is currently on page 58; search “3.8” to find)
207
See Quarles, 467 U.S. at 663–64 (O’Connor, J., concurring in part) (arguing the public safety exception
“unnecessarily blurs the edges of the clear line” and that the “rigidity” of Miranda has “afforded police and
courts clear guidance on the manner in which to conduct a custodial investigation . . . .”). But see
Transcript of Oral Argument at 6, Dickerson, 530 U.S. 428 (No. 99-5525) (responding to the argument that
Miranda provides “clear-cut evidence,” of the voluntariness of a confession, Chief Justice Rehnquist
dismissed the idea that Miranda is easily applied as “just a myth.”).
208
Thomas, Illusion, supra note ____, at 1092 (“[B]y most accounts, Miranda has been a spectacular
failure.”). See also White, Waning Protections, supra note _____, at 78 (describing how police interpret and
apply rules from post-Miranda cases “in light of their particular concerns.”).
209
52
the precise match. Some believe the idea was to shut down confessions entirely: the
warned suspect would insist upon his rights, and if counsel was obtained, the lawyer
would not allow a confession. 210 Others view the goal more modestly: to see only that
suspects knew their rights and could make an informed decision of whether to talk to
police. 211
Whatever the case, the present state of affairs is hardly what Earl Warren could
have imagined. When read their rights, most defendants choose to waive them, and spill
the beans. 212 At her confirmation hearings in 1981, Justice O’Connor discussed her
experience with Miranda as a trial judge: “People continued to make statements despite
the fact that they had been warned of the consequences, in large measure.” 213 The data
bear this out. 214
This story might be a happy one if – properly interpreted – it reflected the
reasoned choice of the suspect class. And in one sense it does, sometimes. Although
commentators are not in agreement here, it seems that for many suspects, hope springs
eternal. The choice they really want, as George Thomas has pointed out, is to go
210
211
See Thomas & Leo, Effects of Miranda, supra note _____, at 211–12 (“Our view is that Miranda sought
a mechanism to protect the “free choice” of the suspect to decide whether to answer police questions during
interrogation.”); Weisselberg, Mourning Miranda, supra note _____, at 1594–96 (arguing the warnings
were “intended to afford custodial suspects an informed and unfettered choice between speech and silence
and, at the same time, prevent involuntary statements.”).
212
See Cassel & Hayman, Interrogation in the 1990s, supra note ____, at 860 tbl.3 (83.7 percent of
suspects from a sample of 129 waived their rights); Leo, Interrogation Room, supra note ____ at 276 (78.3
percent of suspects from a sample of 175 waived their rights). See also Thomas & Leo, Effects of Miranda,
supra note ___, at 247 (exploring the reasons so many suspects waive their rights); Malone, After Twenty
Years, supra note _____, at 76 (“Next to the warning label on cigarette packs, Miranda is the most widely
ignored piece of official advice in our society.”).
213
The Nomination of Judge Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 97th Cong. 146
(1981).
214
53
home. 215 And the only way they perceive to do that is to persuade the police the whole
thing is a mistake. So, having been told they can shut up, though that might mean
prolonging custody, they choose instead to blab. Not as clever as their interrogators, they
end up incriminating themselves. 216
Unfortunately, however, in many cases the decision of suspects to talk may not be
a voluntary one in the sense the Miranda Court intended. 217 For one thing, relatively
soon after Miranda itself – but after the composition of the Court had changed – the
Court adopted a standard of determining waiver of Miranda rights that undercut the rule
itself. 218 The waiver problem had always been the Achilles heel of Miranda.219 The
suspect had to be given all these warnings because she was ill-informed and unable to
take care of herself. But if this were the case, how could she ever be in a position to
215
See Thomas, Miranda’s Illusion, supra note _____, at 1094 (“. . . I doubt that guilty suspects who face
police interrogation think they have a meaningful "free choice" after receiving Miranda warnings. The "free
choice" that the suspect wants is to walk out the door and go home.”). See also Drizin & Leo, False
Confessions, supra note _____, at 969 (finding, in a study of 125 false confessions, that “one of the most
common reasons cited by teenage false confessors is the belief that by confessing, they would be able to go
home.”).
216
See Leo, Interrogation Room, supra note ____, at 280 tbl.7 (finding that of 182 interrogations that went
beyond the administration of Miranda warnings, 35.71% of suspects gave no incriminating statement,
22.53% of suspects gave an incriminating statement, 17.58% of suspects gave a partial admission and
24.18% gave full confessions).
217
Following the decision in Dickerson, one criminal defense attorney explained that “Miranda has become
meaningless,” and that for that reason the familiar warning “sounds just like theme music for a precinct
version of a talk show.” Erica Perl, It Feels So Good to Confess, N.Y. Times, July 6, 2000, at A25.
218
Compare Miranda, 384 U.S. at 475 (stating a waiver “will not be presumed simply from the silence of
the accused after warnings are given or simply from the fact that a confession was in fact eventually
obtained. . . .”) with Butler, 441 U.S. at 373 ( “[Miranda] does not mean that the defendant's silence,
coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a
conclusion that a defendant has waived his rights. . . .”).
219
See Graham, Self-Inflicted Wound, supra note ___, at 182 (characterizing the waiver standard as the
“loophole” of Miranda); Berger, Miranda Waivers, supra note ____, at 1061–62 (explaining that “the Court
has rejected virtually every suggestion for procedural protections to insure the accuracy of waiver
findings.”); Thomas, Separated at Birth, supra note ____, at 1082 (declaring, after reading “hundreds of
appellate opinions deciding whether the police complied with Miranda” that “once the prosecutor proves
that the warnings were given in a language that the suspect understands, courts find waiver in almost every
case. Miranda waiver is extraordinarily easy to show . . . .”).
54
know whether to waive the Miranda rights? 220 Absent requiring a lawyer for every
suspect, which wasn’t going to happen, this was a real problem. The Court exacerbated
this lurking problem when, in North Carolina v. Butler, it indicated that a knowing
waiver could be found based only on the facts that (a) rights had been read; and (b) the
suspect talked. 221 Without some more affirmative showing of waiver, any heft Miranda
was likely to have was reduced greatly. 222
What happens today is that interrogators take advantage of the low waiver
threshold by “conditioning” suspects to talk despite the warnings.
Scholars have
documented a variety of techniques cops use to lessen the impact of the warnings. 223
They de-emphasize them in the telling. 224 They supplement them with the reasons that
220
This criticism is long-standing. See Miranda, 384 U.S. at 536 (White, J., dissenting). (“[I]f the defendant
may not answer without a warning a question such as ‘Where were you last night?’ without having his
answer be a compelled one, how can the Court ever accept his negative answer to the question of whether
he wants to consult his retained counsel or counsel whom the court will appoint?”).
221
Butler, 441 U.S. at 373 (“. . . [I]n at least some cases, waiver can be clearly inferred from the actions and
words of the person interrogated.”). See also Connecticut v. Barrett, 479 US 523, 527 (1987) (finding valid
waiver when suspect was read warnings and answered questioning orally despite saying he would not give
any written statement without his lawyer present); Colorado v. Spring, 479 U.S. 564, 575 (1981) (finding
valid waiver even if police deliberately do not tell a suspect they intend to interrogate him about a more
serious crime than the crime of arrest).
222
See Thomas, Separated at Birth, supra note ____, at 1082 (finding, after reading “hundreds of appellate
opinions” on Miranda that “the Miranda version of the Fifth Amendment permits waiver to be made
carelessly, inattentively, and without counsel.”); Kamisar, Fortieth Anniversary, supra note ___, at 187
(“[I]n a significant number of cases, the police, in effect, are talking the suspect out of asserting his rights
before the “waiver of rights” transaction ever takes place.”) (emphasis in original)).
223
See Leo, Interrogation Room, supra note ____, at 278 tbl.5 (finding in 30% of cases surveyed, officers
confronted suspects with false evidence of guilt, in 22% of cases offices minimized the moral seriousness
of the offense, and in 34% of cases offered moral justifications or excuses for the crime); Leo & White,
Adapting to Miranda, supra note _____, at 402–07 (stating that while some police officers read Miranda in
a neutral manner, “others have implemented a variety of strategies designed to convince suspects that
waiving their Miranda rights is either an inevitable byproduct of the process or in their own best
interests.”); Kamisar, Fortieth Anniversary, supra note _____, at 186 (describing such techniques not as
“adapting” to Miranda, but “’circumventing,’ ‘evading,’ or ‘disregarding’ Miranda” and that based on Leo
& White’s research “it would be no exaggeration to say that in a significant number of instances, law
enforcement officers are making a mocker of Miranda.”); Weisselberg, Mourning Miranda, supra note
____, at 1547–63 (finding courts are “quite deaf to defendants’ claims based on ‘mild’ ‘softening up’
tactics,” but that more “extreme” tactics, such as allowing police to give warnings only after making a
confrontation statement, relocate Miranda’s protections to the “heart of the psychological process of
interrogation.”).
224
55
talking is a good idea, or that asking for a lawyer is a bad one. 225 They misrepresent the
situation, they cajole. 226 In this environment it is little surprise that suspects talk. 227
Worse yet, although not all suspects talk, a look at which ones do underscores
how much Miranda has been perverted. Studies suggest two types of suspects assert
their rights: those with prior felony convictions and those economically well-off enough
to have had exposure to lawyers in the past. 228 This is hardly the group one would want
Miranda to advantage. Yet, most others talk. 229
While Miranda doesn’t seem to provide suspects with the hoped-for protection, it
has become a safe harbor for police officers. 230 For most suspects, Miranda has become
nothing other than a free pass for the admission of confessions. Whereas in the past there
was some investigation into whether in fact a confession was voluntary, today the fact
225
226
227
Cf. Miranda, 384 U.S. at 476 (“Moreover, any evidence that the accused was threatened, tricked, or
cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”)
228
See Leo, Interrogation Room, supra note ___ at 286 (finding suspects with felony records four times
more likely to invoke Miranda rights than those without a record). Stuntz, Miranda’s Mistake, supra note
___ at 993 (describing affluent suspects and recidivists as those most likely “to know that talking to the
police is a tactical error, that any relevant information they have can be sold through the plea bargaining
process . . . .”); But see Leo, Interrogation Room, at 291 (noting that “class” had no effect on success rate
of police interrogation).
229
See supra note ___.
(Note is on pg. 53 now; search “83.7 percent of suspects from a sample of 129 waived their rights” to find
corresponding note).
230
See Fried, Order and Law, supra note _____, at 45 (“[M]ost professional law-enforcement
organizations had learned to live with Miranda, and even to love it, to the extent that it provided them with
a safe harbor: if they followed the rules, they had a fair assurance that a confession would be admissible
and a conviction built on it would stick.”); Stuntz, Miranda’s Mistake, supra note ____, at 976 (“Miranda
imposes only the slightest of costs on the police, and its existence may well forestall more serious, and
more successful, regulation of police questioning.”); Thompson, Evading Miranda, supra note ___, at 649
(“ . . . Miranda now serves police interests in one of two ways. First, in cases in which police obtain
waivers, it insulates a stressful interrogation process from judicial scrutiny to determine whether the
confession was voluntarily given. Second, in cases in which the rights are invoked, the police may be able
to ignore Miranda, perhaps deliberately, and elicit statements for impeachment use as well as uncovering
other admissible derivative evidence.”); Zalman & Smith, Attitudes of Police, supra note ___, at 901 tbl.1
(finding 87.6% of respondents in a survey of 99 large police departments either disagreed or strongly
disagreed with dismantling Miranda, and noting also that 97.9% of officers surveyed agreed with the result
in Patane).
56
that warnings were read is enough to allow the confession into court. 231 Read the
warnings; admit the confession. As Justice Souter said in Seibert: “giving the warnings
and getting a waiver has generally produced a virtual ticket of admissibility.” 232
Not only does the Miranda ritual now tilt in favor of the police and prosecution,
but it affirmatively takes the focus off the one thing that should matter: the voluntariness
of the confession.
Miranda was intended to help ensure that voluntariness; now it
obscures it. It is black letter law that the question of voluntariness survives Miranda,
which is to say that even a confession valid under Miranda may still fail as
involuntary. 233
As a practical matter, however, courts almost never examine the
voluntariness of confessions anymore.
As Justice Souter continued in Seibert
“maintaining that a statement is involuntary even though given after warnings and
voluntary waiver of rights requires unusual stamina, and litigation over voluntariness
tends to end with the finding of a valid waiver.” 234 Overruling Miranda would at least
force the focus back on the proper subject of discussion. 235
231
See, e.g., Seidman, Servant of Politics, supra note ____, at 209. (“Although the Supreme Court
continues to insist on the ritualistic reading of Miranda warnings, judges have virtually gone out of the
business of actually policing the voluntariness of confessions and regularly sanction the sort of coercive
tactics that would have led to the suppression of evidence a half century ago.”).
232
Siebert, 542 U.S. at 608–09.
233
See Dickerson, 530 U.S. at 434 (“We have never abandoned this due process jurisprudence, and thus
continue to exclude confessions that were obtained involuntarily.”); LaFave, supra note ____, at 349
(Explaining the voluntariness test is important “because limitations upon the prosecution’s use of
involuntary statements extend beyond the limitation upon the use of statements that are voluntary but
obtained in violation of Miranda.”); Kamisar, Overrule Miranda, supra note ____, at 933 (“The Miranda
court did find the voluntariness test wanting, but it did not replace it in all settings and under all
circumstances. Miranda added another test. The voluntariness test is still there.”).
234
Siebert, 542 U.S. at 609.
235
Accord, Weisselberg, Mourning Miranda, supra note _____, at 1594–96 (arguing that abolishing
Miranda’s warning and waiver requirements would “at a minimum, clear the way for full assessments of
voluntariness”); Garcia, Is Miranda Dead, supra note ___, at 504 (“I propose that we do away with
Miranda altogether. . . . [P]olice ought not to hide behind either the warnings or a waiver in order to shield
an otherwise involuntary confession from scrutiny.”).
57
Among scholars, on the left and right alike, there is remarkable agreement about
all of this. Not to overstate things, people will disagree virulently on whether the Court’s
own decisions caused the problem or whether it was immanent in the doctrine; whether
suspects want to talk or are cajoled into doing so. But on the particulars of what happens
on the ground regarding the reading of rights and subsequent confessions, and about the
perverse effects of Miranda, there is not much disagreement. 236
Ironically, there is something virtually everyone (except some police officials)
agrees is a good idea: videotaping confessions. 237 Videotaping is no panacea; no one can
see what happened when the tape was not running, and the YouTube generation
understands that perspective matters in interpreting even video. 238 Still, the consensus is
that making a record will act as a disincentive to police misbehavior. 239 And once there
236
Indeed, the only vibrant area of disagreement is over how many convictions are lost as a result of
Miranda, and whether Miranda does any good. The margins here, though, are instructive. Paul Cassell
argues Miranda has caused prosecutors to lose cases against as many as 3.8% of all criminal suspects
questioned; Stephen Schulhofer says it is only 0.78%. Compare Cassell, Miranda’s Social Costs, supra note
____, at 438, with Schulhofer, Miranda’s Practical Effect, supra note ____, at 544. Not to trivialize,
especially in terms of absolute numbers, but still those percentages are on the low side. On the other hand,
even the staunchest advocates for Miranda, such as Yale Kamisar and Schulhofer, are not sanguine about
the job it is doing in its present state. They favor retaining it but concede it isn’t doing enough standing
alone. See Schulhofer, Miranda’s Practical Effect, supra note ____, at 544; Kamisar, Fortieth Anniversary,
supra note _____, at 194–97.
237
See Stuntz, Miranda’s Mistake, supra note ____, at 981 n. 19 (“The need for video- and audiotaping is
the one proposition that wins universal agreement in the Miranda literature”). See, e.g., Cassell, Miranda’s
Social Costs, supra note ___, at 391; Kamisar, Fortieth Anniversary, supra note ___, at 188–92; Lewis,
Rethinking Miranda, supra note ____, at 200; Leo, Impact, supra note ___, at 682–89; Zalman & Smith,
Attitudes of Police, supra note ___, at 921 tbl.8 (finding, in a survey of 99 large police departments, that
59.6% of respondents favored videotaping all station-house interrogations of adult suspects and 58.8%
supported videotaping all station-house interrogations of juvenile suspects). But see Schulhofer, Miranda’s
Practical Effect, supra note ____, at 503 (“[V]ideotaping of interrogation would be a useful complement to,
but not a substitute for, the Miranda safeguards.”)
238
Justices have also displayed differing perspectives when viewing videotaped evidence. See Scott v.
Harris, 550 U.S. 372, 390 n.1 (2007) (Stevens, J., dissenting) (arguing other justices would view a
videotape of a police chase “more dispassionately” had they “learned to drive when most high-speed
driving took place on two-lane roads rather than on superhighways — when split-second judgments about
the risk of passing a slow-poke in the face of oncoming traffic were routine.”).
239
Bradley, Interrogation and Silence, supra note ___ at 290; Lewis, Rethinking Miranda, supra note ____,
at 220.
58
is a recording, then there can be an examination of what all agree is the right question:
did the defendant appear to have confessed voluntarily? 240
But continued adherence to Miranda might actually serve as an obstacle to the
adoption of videotaping. In the Miranda decision itself, the Chief Justice made clear that
the formulaic warnings were not the only possible answer to the problem of the inherent
compulsion of the interrogation room. 241 Police were only required to provide Miranda
warnings if governments failed to adopt some equally effective alternative. 242 As it
happened, the Miranda Court’s invitation was not accepted in many jurisdictions,
perhaps because Miranda was not that hard to comply with, and provided a wonderful
safe harbor. Some jurisdictions have adopted the practice of recording confessions,
however. 243 If Miranda were to go, the impetus might spread.
The foregoing is not an argument to overrule Miranda; rather, it explains why, by
the Court’s own standards regarding stare decisis, perhaps Miranda is apt for overruling.
Reliance interests are zilch. Miranda has been gutted as a legal matter, and as a factual
matter its impact might very well be perverse.
It was workable before the Court
continued to tinker, but now it is a mess. And yet, the Court hasn’t overruled the decision
explicitly. At which point, one really must ask, why not?
III.
THE MOTIVES OF OVERRULING BY STEALTH
240
See Stuntz, Miranda’s Mistake, supra note __, at 981 (arguing that by providing courts with a clear
record to draw from, videotaping would demonstrate whether courts can apply the voluntariness totality
standard). Indeed, many suggest this could benefit police. See, e.g., Leo, Miranda Revisited, supra note
___ at 683, (“By video recording interrogations, police create an objective, reviewable record of custodial
questioning that protects them against false accusations . . . .”).
241
Miranda, 384 U.S. at 467.
242
Miranda, 384 U.S. at 490.
243
See, e.g. Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 4
(Northwestern Univ. Sch. of Law, Ctr. on Wrongful Convictions, 2004) (finding at least 238 law
enforcement agencies in 38 states record custodial interviews of suspects in felony investigations). Several
states have also required such recording. See People v Combest, 4 N.Y.3d 341, 350 n.5 (2005) (naming
Alaska, Illinois, Maine, Minnesota, Texas and the District of Columbia as jurisdictions that mandate such
recording).
59
There must be reason a Justice decides to overrule by stealth. There is something
to be gained by failing to pull the trigger, by moving less overtly. This Part looks at
possible reasons, concluding that the most plausible one in some, if not most, cases is to
avoid the publicity attendant explicit overruling.
The next Part examines the costs
associated with stealth overruling.
A.
Two Reasons that Don’t Work
There are two arguments that, while not necessarily favoring stealth overruling,
might nonetheless explain it. One deals with the desire of a Justice to be a minimalist, to
decide no more than needs deciding. The other rests in the vagaries of decision-making
on a collegial court. Both are plausible arguments, but neither ultimately succeeds in
explaining why a Justice might vote to overrule by stealth.
1.
The motive of minimalism
Sometimes it is better to leave things or unresolved. There will be disagreement,
of course, about when a minimalist course of action is appropriate. But sometimes less
can be better, particularly when it comes to judicial decision-making.
There are different versions of the minimalist thesis in law. Cass Sunstein argues
that in order to leave space for democratic deliberation, the Supreme Court should in
certain circumstances take care to issue decisions that cover no more ground than
necessary. 244 Adrian Vermeule, sometimes co-authoring with Sunstein, argues that there
are decision costs judges can avoid by being minimalists. 245 Judges see only a piece of a
244
See One Case at a Time, supra note ___.
See Judging Under Uncertainty, supra note ___ (arguing that, given severe uncertainty as to which
interpretive method is preferable, judges should interpret statutes according to their surface meaning,
abandon textual interpretation and the use of legislative history, and maximize deference to agencies);
Sunstein & Vermeule, Interpretation and Institutions, supra note ___, at 888 (arguing that an unambitious,
formalist method of interpretation might be well suited to the “institutional limits of generalist judges”);
Vermeule, Interpretive Choice, supra note ___, at 143-45 (arguing that, given “limited judicial competence
245
60
puzzle, and may lack all the information they need to resolve a matter. 246 By deciding
narrowly, judges avoid adopting erroneous decisions with far-reaching consequences.
All this is of heightened concern in constitutional cases, of course, because it is difficult
to get around judicial rulings. “Modesty,” in various forms, has been urged upon the
Justices for a long time. 247
Minimalism may seem particularly appropriate when it comes to Miranda,
because the decision itself was condemned as so very maximalist. That, for example,
was the course Justice Alito ostensibly took in Hein, declining to “extend” Flast given
“serious separation-of-powers concerns.” 248 Although fighting fire with fire is tempting,
two wrongs don’t necessarily make a right. A respect for stare decisis, combined with a
lesson learned about judicial method, might cause a Justice to move slowly in scraping
away even unwanted residue.
Gradualism is a technique often associated with the present Chief Justice and his
Court. 249 There may be an historical reason for this.
Although swapping William
Rehnquist for John Roberts in the Court’s center chair was seen by commentators as an
and information,” judges should observe an absolute rule of statutory stare decisis, since “the effect of
overruling would be to sacrifice certainty and stability for a merely conjectural gain”).
246
See Sunstein, Trimming, supra note ___, at 1087 (noting that minimalism is indicated when “judges lack
the information to justify width or breadth” of ruling, as when they consider “novel First Amendment
questions raised by contemporary technologies”); Vermeule, Holmes on Emergencies, supra note ___, at
178 (noting the minimalist hope that “leaving things undecided, for now, will allow future judges to decide
the open questions with more information than present judges possess”).
247
The Warren Court era was marked by much soul-searching among academics, who sought to establish
principled limits to the Court’s interventionism. One particularly hollow refrain was the call for “restraint”
or “modesty.” See McCleskey, Judicial Review, supra note ___, at 365 (describing a doctrine of judicial
restraint that “acknowledges the undemocratic character of judicial review”); Sutherland, Establishment
According to Engel, supra note ___, at 40 (“[t]he Court...has wisely created for itself canons of selflimitation, lest it be asked or be inclined to attempt too much....”). But the demand for “modesty” did
nothing to define which particular cases required restraint; see Friedman, CMD V, supra note ___, at 24547 (outlining and critiquing the “modesty” doctrine).
248
See Hein, 551 U.S. at 611 (citing Flast’s insufficient attention to separation-of-powers concerns); id. at
609 (noting that Flast had been largely confined to its facts); id. (noting narrow application of Flast). RA:
I fixed text; now fix fn!
249
See Cass R. Sunstein, The Minimalist, L.A. Times, May 25, 2006 (noting Judge Roberts’s minimalist
philosophy);
61
ideologically-even trade, the common expectation was that Justice Alito would be more
conservative than Justice O’Connor, whom he replaced. 250 There led to understandable
concern on the left about a sudden rightward turn on the Court, especially with regard to
contentious social issues. 251 Perhaps for this reason, the confirmation hearings of both
Roberts and Alito were full of discussion about, and assurances of, adherence to stare
decisis. Then-Judge Roberts, in his hearing, assured Senator Specter that “Judges have to
have the humility to recognize that they operate within a system of precedent”; Alito, for
his part, called stare decisis “a fundamental part of our legal system,” citing its virtues of
stability, protection of reliance interests, and limitation of judicial power. 252 And since
these Justices took the bench, many have either noted or to praised the gradualism of the
Roberts Court. 253 Note that in the 2006 stealth overruling cases it was most often the
Chief Justice and Justice Alito who were balking at overturning prior decisions.
250
See, e.g., Peter Baker, Court Pick May Set Off Ideological Battle, Wash. Post, Nov. 6, 2005, at A03
(noting that “[i]f confirmed…Alito seems likely to shift the court to the right”); Henry Weinstein, Alito's
Judicial Record a Portrait of Conservatism and Consistency, L.A. Times, Nov. 1, 2005, at A18 (reporting
that “a number of legal scholars, including liberals and conservatives, all agreed that Alito is considerably
more conservative than Justice Sandra Day O'Connor, whom he would succeed”); Charlie Savage,
Opinions Portray a Conservative, Boston Globe, Nov. 1, 2005, at A1 (reporting predictions that “Alito
would transform O'Connor's moderate seat into a stalwart conservative vote”). RA: may need sources
saying even trade, see conclusion of my book.
251
See Charles Babington & Michael A. Fletcher, Alito Likely to Be Grilled More Than Roberts;
Meanwhile, Judge's Friends and Foes Campaign Hard as Senate Hearings Near, Wash. Post, Jan. 5, 2006,
at A03 (quoting Nan Aron, president of the Alliance for Justice, warning that Alito “has the ideas and
vision to move American legal thought in a radical new direction, jeopardizing our most cherished
individual rights and freedoms”; Jo Becker, Television Ad War On Alito Begins; Liberals Try to Paint
Court Pick as Tool Of the Right Wing, Wash. Post, Nov. 18, 2005, at A03 (reporting criticisms by liberal
groups of Alito’s “record on affirmative action, voting rights, job discrimination and other subjects,”
including abortion, as well as ads run by a liberal coalition urging viewers not to let “the right wing…take
over your Supreme Court”).
252
See U.S. Sen. Judiciary Comm. Hearing on the Nomination of John Roberts to be Chief Justice of the
Supreme Court (2005) (statement of Judge Roberts) at 2005 WL 2204109; U.S. Sen. Judiciary Comm.
Hearing on the Nomination of John Roberts to be Chief Justice of the Supreme Court (2005); U.S. Sen.
Judiciary Comm. Hearing on the Nomination of Judge Samuel Alito to the U.S. Supreme Court (2006)
(statement of Judge Alito), at 2006 WL 75414.
253
See Anderson, Measuring Meta-Doctrine, supra note ___, at 1089-90 (concluding, after an attempt to
empirically measure minimalism on the Court, that Roberts “may be among the more minimalist members
of the Court remaining after Chief Justice Rehnquist's and Justice O'Connor's departures”; Voting Rights
Act still needed; Supreme Court ruling rightly rejects attempt to declare the landmark legislation
62
Still, in the context of Miranda, the minimalist argument simply does not work.
While minimalism properly understood leaves things undecided, stealth “overruling”
simply leaves things undone. There has been no subtlety in the Court’s negative view
about Miranda. Oozing out of the decided cases is contempt for a rule that allows the
guilty to go free on technicalities, that subverts justice by hiding evidence. 254 Possessing
a “thus far and no further” quality, decisions like Siebert and Patane purport to live with
the core of the rule while doing everything they can to undermine it. 255 They don’t move
slowly to extend Miranda. Rather, the decisions slice it back with the viciousness one
applies to a long-untended hedge.
Patane creates an enormous incentive to ignore
Miranda, which – as we will see – police have taken. 256 In application, Siebert has done
the same. Gradualism or minimalism may have their virtues, but when it comes to
Miranda what the Court is doing is overtly stopping just short of tipping over the façade,
while clawing away at its foundations.
Nor do the primary rationales for minimalism play when it comes to Miranda.
Certainly democratic deliberation is not fostered by failing to overrule Miranda. Miranda
itself limited what democratic politics would permit. 257
As Justice Scalia said in
Dickerson, arguing in favor of overruling Miranda, there is “little harm in admitting that
we made a mistake in taking away from the people the ability to decide for themselves
what protections (beyond those required by the Constitution) are reasonably affordable in
unconstitutional, Grand Rapids Press, June 28, 2009 (editorial page) (praising the Court for “follow[ing]
Chief Justice Roberts' philosophy of judicial minimalism, [and] ruling on a narrow statutory basis,” thus
avoiding constitutional challenge to the Voting Rights Act); Day To Day (NPR radio broadast Jan. 10,
2007) (noting, during discussion of Court’s likely stance on Davenport v. Washington Education
Association, 551 U.S. 177 (2007), that “now we live in the era of Roberts Court minimalism. So the Court
will do as little as it can”).
254
255
See infra part IV.B.
See infra part IV.B.
257
Miranda, 384 U.S. 436.
256
63
the criminal investigatory process” and “much to be gained by reaffirming for the people
the wonderful reality that they govern themselves . . . .” 258 Similarly, there is no judicial
modesty with regard to decision errors. The Court constantly is creating incentives to
avoid compliance with Miranda, in a way that indicates great confidence about what the
right answer is. 259 They act as if they are stuck with the core of Miranda, or so it seems,
but no modesty attends undermining it.
The sense of many of the stealth overruling cases is not “move cautiously lest we
err,” but grudging acceptance of what cannot be touched, while subverting the rule itself
to the greatest degree possible. That certainly is the case with, for example, the Court’s
decision on the Bi-partisan Campaign Reform Act.
Although McConnell allowed
regulation in the facial challenge, it is difficult to see what campaign ads could be
constitutionally prohibited after WRTL. 260
Perhaps the argument in favor of these stealth “overruling” decisions is a form of
minimalism nonetheless, the idea of acting tentatively until there is sufficient data to take
the plunge and explicitly overrule. This sort of argument, while initially appealing, is not
without its difficulties. What is the reason for acting tentatively? Is it only to test the
waters of public reaction? That seems not to count, being the precise conduct critiqued
here. Or is the goal to get empirical feedback of a different sort, for example how the
halfway-overruling rule actually operates? For example, maybe the Court wants to see
what it looks like when police start to ignore the rule of Miranda in some subset of cases.
258
Dickerson, 530 U.S. at 464–65 (Scalia, J., dissenting).
See infra part IV.B.
260
See Kasper, Magic Words, supra note ___, at 20-21 (concluding that Wisconsin Right to Life’s definition
of the “express equivalent” of campaign advocacy is so restrictive as to make for “an effective reversal of
McConnell”); Hasen, Beyond Incoherence, supra note ___, at 1091 (concluding that the Wisconsin Right to
Life test “would lead to the end of effective limits on corporate and union election-related spending from
general treasuries”).
259
64
The difficulty is that the Court’s ability to collect “empirical” evidence of this sort in a
way that presents an accurate picture of the facts on the ground is extremely dubious.
The larger problem is that the Court lacks a principled stopping ground, a justification for
its half-way measure. If it ultimately moves neither forward or back, what will be the
grounds to explain this?
So, it is true that Justice Alito may favor Hein over an
interpretation of Flast that allows challenges to executive agency action, and may do so
because each constitutional challenge is one more (in his view) affront to separation of
powers, so the fewer the better. But Justice Alito, being a judge, lacks the luxury of
fixing the number of challenges he wishes, unless he can think of a principled basis for
distinguishing those he would allow from those he would not.
One properly is skeptical that this is minimalism at all. Though wrapped in the
caution of taking no greater steps than necessarily, it appears instead a sophisticated game
of mumblety-peg in which the Justices wield their knives with great acumen. It is, in its
own right, aggressive decision-making. And so, explanation must be sought elsewhere.
2.
The difficulties of collegial decision-making
In a justifiably well-regarded article, Frank Easterbrook criticizes the way
scholars criticize the Supreme Court. 261
One must distinguish, he urges, between
criticism of the conduct of the Justices voting or writing individually, and the same when
it pertains to the conduct of the Court majority. 262 The Justices must decide by majority
vote, after all, and there are well-known dysfunctions with voting processes that may
261
Easterbrook, Ways of Criticizing, supra note ___.
See Easterbrook, Ways of Criticizing, supra note ___, at 802-03; see also Gerhardt, Silence is Golden,
supra note ___, at 476 (discussing the fallacy that the Court “operates as if it were a single person making a
perfectly rational choice among clearly defined, competing values”).
262
65
frustrate their ability to develop a coherent and consistent jurisprudence in this context. 263
The Court, as Anthony Amsterdam puts it pithily, “is a committee.” 264 Making matters
worse it must do so case-by-case, typically not seeing the whole picture at once, and
confronted regularly with the problem of path dependence.
In his analysis Easterbrook goes a step further, separating out the problem of
“fragmentation” from that of “consistency.” Consistency refers to a coherent body of
doctrine. Fragmentation refers to splintering of court majorities so that even the rules that
do develop fair to reflect a majority of the body. Both plague stealth “overruling” cases.
Easterbrook argues that fragmentation and a lack of consistency are inevitable. 265 But
fragmentation may actually be a good thing, he explains. If the Justices were compelled
to vote together in the present case, that might cover up disagreements that only would
create more confusion in later cases. 266
So, maybe the problem with stealth “overruling” is not one of design at all.
Perhaps it is too much to fault the Court in this regard. Consistency is difficult to
achieve, and fragmentation arguably admirable. Put differently: the disposition majority
simply can’t muster the votes to overrule entirely, and perhaps that is a good thing.
Yet, Easterbrook does not excuse the conduct of justices acting as individuals –
and that is the problem in the stealth “overruling” cases. “I do not mean to say,”
Easterbrook stresses, “that it is pointless to criticize a particular Justice for inconsistency
263
See Easterbrook, Ways of Criticizing, supra note ___, at 814-823 (discussing cycling, path dependence,
and strategic voting within the Court).
264
Amsterdam, Perspectives, supra note ___, at 350.
265
See Easterbrook, Ways of Criticizing, supra note ___, at 823-831 (using Arrow’s Theorem to
demonstrate that general logical consistency is impossible for the Court).
266
See Easterbrook, Ways of Criticizing, supra note ___, at 810-811 (arguing that such a practices could
“conceal a position that may prevail after repeated litigation and conceal as well information about how
some Justices would weigh the factors to be balanced”).
66
or thick-headedness.” 267 In each stealth-“overruling” case it is possible to break down
the action of the Court majority into the action of individual justices. Each justice has a
choice: either vote to overrule explicitly, or not. The question is whether any given
justice is acting properly on his own.
The critique of stealth “overruling” can be laid squarely at the doorstep of those
who refuse to overrule overtly. By definition, stealth “overruling” occurs when justices
draw distinctions that are not tenable; when they fail to plausibly honor prior decisions.
Frequently other justices on the Court provide stark evidence of this, while arguing either
that explicit overruling is appropriate, or that one should adhere to precedents. So, the
decision to engage in disingenuous distinctions, to fail to honor precedents, is neither
inevitable nor the product of committee decisionmaking. It is an individual choice of a
justice, and subject to critique as such.
Moreover, fragmentation, though common in these cases, is not the whole issue.
Easterbrook is right; the general problem of fragmentation is a complex one that receives
far less attention than it deserves. Easterbrook’s sophisticated analysis turns on the fact
that there are at least three possible positions to be taken on an issue, and cycling among
them is inevitable. 268 But the stealth “overruling” cases are not ones in which there are
three or more sophisticated positions along a decision-making continuum, in which
aggregation is not easily accomplished. Rather, there is explicit overruling and there is
purporting not to.
267
268
Easterbrook, Ways of Criticizing, supra note ___, at 803.
See Easterbrook, Ways of Criticizing, supra note ___, at 818.
67
It is both too easy and wrong to excuse what is happening in these cases on the
ground that the votes cannot be mustered to overrule explicitly. Quite obviously that is
the case. But the question is what each individual justice, acting alone, should do.
B.
The Reason That Does Work: Ducking Publicity
There is one explanation that remains for the Court’s refusal to overrule Miranda
outright, and that is the pressure of public opinion. Although the evidence here is largely
circumstantial, the argument has a res ipsa loquitur quality to it as well.
Absent any
evidence that the Justices who are so deliberately undermining Miranda nonetheless
believe the decision was properly decided, and is worth adherence on that basis, it is
difficult to know what else would justify the odd state of events.
Although public opinion is not often given as a basis for the Court’s decisions, it
actually has played a role with regard to stare decisis. As we have seen, part of the
concern about overruling in constitutional cases is the way the public will perceive the
decision, especially if it appears fueled by little else but a membership change on the
Court. 269 This was most poignantly the case in Planned Parenthood v. Casey. The
critical opinion in that case was the Joint Opinion of Justices Kennedy, O’Connor, and
Souter.
Their Joint Opinion dwelt in somewhat agonized terms with the crisis of
legitimacy the Court would experience if it overruled Roe; they concluded that a “terrible
price would be paid for overruling.” 270 Their analysis was somewhat muddled, but the
conclusion was almost certainly correct. Casey was a case of extremely high salience,
269
See supra note ___.
(Note is on pg. 48 now; search “There is particular sensitivity when doing so seems only to reflect a change
in membership on the Court” to find corresponding note).
270
Casey, 505 U.S. at 864. Another opinion often cited to demonstrate the consequences of wanton
overruling is the majority opinion of Justice Harlan in Moragne v. States Marine Lines, Inc., 398 U.S. 375,
403 (listing “the necessity of maintaining public faith in the judiciary as a source of impersonal and
reasoned judgments” among “[v]ery weighty considerations underl[ying] the principle that courts should
not lightly overrule past decisions”).
68
and the justices had seen ample evidence of the uproar that would attend a decision to
overrule Roe v. Wade. 271
What was true regarding overruling in Casey might be only slightly less the case
with regard to Miranda. The Court’s decision in Dickerson occurred in the glare of
publicity, and polls at the time showed extremely strong public support for Miranda. 272
The Dickerson case was followed closely in the media from the time the Fourth Circuit
handed down its surprising ruling, and was consistently front-page news. 273
Public
support for Miranda ranged from 70% in the always conservative Rasmussen poll, to a
whopping 94% in a Gallup/CNN/USA Today survey. 274 Equally remarkable, polling
results showed that support for the precedent varied little based on race or political
partisanship. 275
271
See infra Part IV.C.4.
See Lerman, supra note ____, at 51 (noting that when Dickerson was decided, 86% of the public agreed
with the decision to require “police to inform arrested suspects of their rights to remain silent and to have a
lawyer present during any questioning.”).
273
To substantiate this, I asked a research assistant to search the major newspapers database on Lexis at six
points in time. Results were divided into front-page news articles and non-front page news articles,
exclusive of editorials and articles irrelevant to the case. This showed the Fourth Circuit decision was frontpage news in 2 newspapers and non-front page news in 7; the Department of Justice’s brief urging the
Court to grant cert was front page news in 9 and non-front page news in 15; the period before oral
arguments was front page news in 9 and non-front page news in 15; arguments were front-page news in 6
and non-front page in 10; and the decision was front page news in 21 and non-front page in 12. See, e.g.,
Tom Jackman, ‘Miranda’ Rule Challenged; Court in Va. Rejects Required Reading of Rights, Wash. Post,
Feb. 10, 1999, at A01; Tony Mauro, Police win right to remain silent on Miranda in 5 states, USA Today,
Feb. 10, 1999, at 1A; Linda Greenhouse, Justices to Hear Case That Tests Miranda Decision, N.Y. Times,
Dec. 7, 1999, at A1; Lyle Denniston, Epic case to decide fate of Miranda; Supreme Court ruling on rights
warnings 'hangs in the balance', Balt. Sun, April 16, 2000, at 1A; Joan Biskupic, High Court Confronts
Miranda ‘Conundrum’, Wash. Post, April 20, 2000, at A01; Linda Greenhouse, The Supreme Court: The
Precedent; Justices Reaffirm Miranda Rule, 7-2; A Part of ‘Culture’, N.Y. Times, June 27, 2000, at A1.
274
See Gallup, Public Opinion 2000, supra note _____, at 200 (showing in June 2004, 94% favored
requiring police to advise anyone arrested of their constitutional rights; 6% opposed and less than 1% had
no opinion); Putting The Supreme Court in Perspective, World Net Daily.com, Dec. 20, 2000, available at
http://www.wnd.com/index.php?pageId=7700.
275
See Lerman, supra note ____, at 51. (“[A] large majority of both blacks (89%) and whites (86%) agreed
with the Court’s decision, as did a large majority of Democrats (90%), independents (86%), and
Republicans (82%). There were likewise no significant differences between Southerners and those from
other regions of the country.”).
272
69
The outcome in Dickerson appeared driven in some important part by public
opinion. In a widely-noted turn in the decision, the Chief Justice said “We do not think
there is such justification for overruling Miranda. Miranda has become embedded in
routine police practice to the point where the warnings have become part of our national
culture.” 276 Accepting that this drove the result, Salt Lake City’s conservative Deseret
News was derisive, arguing “the court isn’t supposed to care about public opinion.” Still,
it observed that “anyone on the street” would favor reading people their rights, because it
is “as American as having the referee’s explanation of a penalty broadcast through
stadium loudspeakers.” 277
Many commentators fingered public opinion as the
explanation for the Court’s surprising move. 278 It may well have been the case that there
simply was not at the time a majority of the Court committed to overruling Miranda. But
some of those non-overruling votes may well have been driven by public opinion
themselves. 279
In confirmation hearings for justices joining the Court following Dickerson, the
decision became a benchmark for one’s fidelity to stare decisis. Dickerson was a pawn
of course; the true object was Roe itself.
The two were paired regularly. Questioning
276
Dickerson, 530 U.S. at 430.
Jay Evensen, Op-Ed, 'Popular culture' won out in Miranda, Deseret News, July 2, 2000, at AA01.
278
See Starr, First Among Equals, supra note ____, at 206 (“Stability when public opinion is genuinely
engaged once again proved to be one of the Court’s highest values.”); Abramowicz, Constitutional
Circularity, supra note ____, at 37-38 (“Even though Miranda may seem less significant than some of its
progeny in developing underlying constitutional issues, it had a much greater effect on popular
understandings of the Constitution, and is thus entitled to greater stare decisis consideration than the later
cases.”); William S. Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey,
Dickerson and the Consequences of Pragmatic Adjudication, 2002 Utah L. Rev. 53 (2002) (comparing
Rehnquist’s dissent in Casey with his opinion in Dickerson and arguing “[t]he very same notions of
generalized societal reliance [Rehnquist] lambasted in Casey he clung to in Dickerson. In Dickerson, Chief
Justice Rehnquist asserted that somehow society has come to rely upon Miranda . . . .”).
279
See Transcript of Oral Argument at 31, Dickerson, 530 U.S. 428 (No. 99-5525) (Responding to a
conversation about measuring the “effectiveness” of any alternative warnings, Justice Breyer states an
alternative “has to be at least as effective as probably word that I think probably 2 billion people throughout
[sic] the world know. . . . Now, that’s a hallmark of American justice in the last —30 years?”).
277
70
Samuel Alito, Senator Arlen Specter asked if Casey involved the legitimacy of the Court.
Alito responded “I think that the Court, and all the courts . . . should be insulated from
public opinion.” Specter moved immediately to Chief Justice Rehnquist’s “change of
heart on the Miranda ruling,” citing the “national culture” language, and asked Alito if
that reasoning was correct. 280
Fealty to Miranda had long been extracted in confirmation hearings. The leftleaning justices on the Court took the pledge, one presumes happily. But the same troth
was pledged on the right.
Alito signed on to Rehnquist’s reasoning in Dickerson
explaining “a great many people, and in that instance, police departments around the
country, over a long period of time, had adapted to the Miranda rule, had internalized it.
I think that all the branches of Government had become familiar with it and comfortable
with it, and had come to regard it as a good way . . . of dealing with a difficult
problem.” 281 Even Justice Thomas denied the Miranda decision was “judicial activism,”
explaining “I see it as the Court trying to take some very pragmatic steps to prevent
constitutional violations.” 282 The only wishy-washy Justice was Anthony Kennedy, who
said Miranda was on the “verge of the law,” and that it “is not clear to me that it
necessarily followed from the words of the Constitution.” Still “it is in place now, and I
think it is entitled to respect.” (Foreshadowing just how much respect he would give it, in
280
Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 319
(2006).
281
Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 320
(2006).
282
Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United
States: Hearings Before the S. Comm. on the Judiciary, 102nd Cong. 334 (1991).
71
cases like Siebert and Patane, Kennedy said it “is a workable part of the criminal system .
. . [i]f it is administered in a pragmatic and reasonable way.”) 283
Even had the Justices been inclined to renege on these commitments, public
pressure remained on them when Seibert and Patane were considered. From the time the
Court granted certiorari, the media identified them as decisions to be watched. Joan
Biskupic explained in USA Today when the decisions came down, “[t]he two disputes
had drawn more attention than the usual criminal law disputes because of the stature that
Miranda warnings hold in constitutional law and in popular fiction . . . .” 284 Editorials
urged the Court to reject the “questioning outside” strategy. 285
Although it is far-fetched to believe the confusing jumble of opinions in Siebert
and Patane were written for the media, they could not have been written to better effect.
Siebert, with its seeming rejection of the eye-catching “questioning outside” strategy, was
the sexy case to follow. From the New York Times to the Washington Post to the
Houston Chronicle, the lead was something akin to “Police Tactic to Sidestep Miranda
Rights Rejected.” 286 The Patane decision invariably was buried deep – and the focus
there was on the fact that Patane told the cops he already knew his rights and didn’t need
283
Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States:
Hearings Before the S. Comm. on the Judiciary, 100th Cong. 204–06 (1987).
284
Joan Biskupic, Justices invalidate ‘question-first’ tactic of police, USA Today, June 29, 2004, at 11A.
285
See, e.g., Editorial, A Miranda Loophole, Wash. Post, Dec. 14, 2003, at B06 (calling two-step
interrogations “a devious procedure, one that should not be allowed . . .”); Editorial, An End Run Around
Miranda, N.Y. Times, Dec. 9, 2003, at A30 (“If Miranda is to retain its vitality, the court must reject these
underhanded tactics.”); Editorial, Cops, tricks and Miranda, S.F. Chron., Dec. 10, 2003, at A30 (“The
nation’s highest court must reaffirm the importance of the Miranda law, and sternly reject any effort to
circumvent it, however clever or shrewd.”); Editorial, The Value of Miranda, L.A. Times, Nov. 15, 2003, at
B30 (calling for the court to “forcefully reaffirm” Miranda).
286
See, e.g., Curt Anderson, Decision limits two-step police interrogations, Houston Chron., June 29, 2004,
at A3; Linda Greenhouse, Tactic of Delayed Miranda Warnings is Barred, N.Y. Times, June 29, 2004, at
A17; Jerry Markon, Police Tactic to Sidestep Miranda Rejected, Wash. Post, June 29, 2004, at A1.
72
them read. 287
Some stories noted the “mixed message” of the decisions, but this
invariably was far deep into the story. 288 Only the Court- and law-savvy SCOTUSblog
saw Patane as the big story, which assuredly it was. 289
Is it remotely plausible that the treatment of the two cases would have been the
same had Miranda been overruled explicitly? 290 Siebert and Patane did not even make it
to the front page of many newspapers. 291 Although counterfactual, it is hard to imagine
the overruling of Miranda as anything other than screaming front page news, and fodder
for countless talk shows. Why take the chance, when Miranda can be whittled to nothing
slowly, suffered death by many cuts?
Lest all this focus on public opinion and the media seem obsessive, or far-fetched,
a counter-example – the case of Montejo v. Louisiana – will help make the point.
Montejo was decided during the 2008 Term. 292 The facts were pretty outrageous, or so
one might have thought under existing doctrine. Following appointment of counsel at a
287
See, e.g., Linda Greenhouse, Tactic of Delayed Miranda Warnings is Barred, N.Y. Times, June 29,
2004, at A17; Jerry Markon, Police Tactic to Sidestep Miranda Rejected, Wash. Post, June 29, 2004, at A1.
288
See, e.g., Brad Knickerbocker & Alexandra Marks, Two Court rulings highlight a delicate balance on
Miranda, Christian Sci. Monitor, June 29, 2004, at 10; David G. Savage, Divided High Court Upholds
Miranda Warnings, L.A. Times, June 29, 2004, at A20.
289
Patane and Sebiert: The Miranda Cases, SCOTUS Blog, June 28, 2004, available at
http://web.archive.org/web/20040630001625/http://www.goldsteinhowe.com/blog/archive/2004_06_27_S
COTUSblog.cfm.
290
Patane could have done so. Rather than holding that the fruit of the poisonous tree doctrine did not
apply, which is difficult to square with Miranda, the Court simply could have knocked Miranda off. (Of
course, the Court also could have held that Miranda had been complied with in that case, given Patane’s
statement he did not need to hear his rights. Patane, 540 U.S. at 635.)
291
To substantiate this, I asked a research assistant to search the major newspapers database in Lexis; this
showed the decisions were front page news in the Washington Post and St. Louis Post-Dispatch, and were
included in a front-page story on other court decisions in the San Francisco Chronicle, but that the other 10
articles mentioning the case were not front page news. See, e.g., Curt Anderson, Justices bar double
interrogations, Star-Ledger, June 29, 2004, at 11; Linda Greenhouse, Tactic of Delayed Miranda Warning
is Barred, N.Y. Times, June 29, 2004, at A17; David G. Savage, Divided High Court Upholds Miranda
Warnings, L.A. Times, June 29, 2004, at A20. While the Siebert and Patane decisions were handed down
on a busy newsday — the same day decisions in Hamdi, Rasul and Padilla were released and the day
United States transferred political authority to the interim Iraqi government — many cases make frontpage news despite such timing. See, e.g., Epstein & Segal, supra note _____, at 73 (arguing front-page
stories carried by the New York Times are a reliable measure of a decision’s salience).
292
Montejo, 129 S.Ct. 2079.
73
preliminary hearing, the police took a defendant on a hunt for the murder weapon, during
which they obtained from him a waiver of his Miranda rights as well as a note to the
victim’s widow inculpating himself. The question presented was whether in doing so
without the defendant’s lawyer’s knowledge or consent, the police violated the rule of
Michigan v. Jackson. Michigan v. Jackson squarely held that following the assertion of
counsel in criminal proceedings, the police may not question a suspect or obtain a waiver
of the right to counsel without that lawyer present. 293 The Louisiana Supreme Court
distinguished Michigan v. Jackson on the ground that Montejo did not affirmatively ask
for a lawyer at his preliminary hearing; rather, he remained silent when one was
appointed to him, as is required under Louisiana law. 294
The Montejo Court overruled Michigan v. Jackson in a way that gives the lie to
any claim that modesty and minimalism are driving the Court these days. No one had
asked that Michigan v. Jackson be overruled, the Court did it on its own initiative. 295 In
doing so, there was no showing that Michigan v. Jackson was inconsistent with other
decisions, or that the factual premises behind it had changed. 296 Most stunning was the
“reliance” prong of the overruling inquiry. In Arizona v. Gant the Court effectively
overruled New York v. Belton, which had provided a bright-line authority for police to
293
Jackson, 475 U.S. at 636.
Montejo, 129 S.Ct. at 2082–83.
295
This issue was not raised by the parties, but by the amici brief of 17 attorneys general who called the
Jackson rule “unnecessary.” Brief for States of New Mexico, et al. as Amici Curiae Supporting
Respondents, Montejo v. Louisiana, 129 S.Ct. 2079 (2009) (No. 07-1529), 2008 WL 5417429. Justices
repeatedly questioned Montejo’s counsel about overruling Jackson at oral arguments, and he replied it was
unnecessary for two reasons: “One, the Respondent has not asked for it. Two, there’s a special justification
that has to be shown to overrule it, as Dickerson says, in the Miranda context, and this is quite parallel.”
Transcript of Oral Argument at 20, Montejo, 129 S.Ct. 2079 (No. 07-1529), 2009 WL 76296. Two months
later, the Court asked for supplemental briefing on the question of overruling Jackson.
296
See Montejo, 129 S.Ct. at 2094 (Stevens, J., dissenting). (“[O]n its own initiative and without any
evidence that the longstanding Sixth Amendment protections established in Jackson have caused any harm
to the workings of the criminal justice system, the Court rejects Jackson outright . . . .”).
294
74
search automobiles when the driver was arrested. 297 Justice Alito wrote an angry dissent
in Gant, making the point that for years the police had been trained regarding the Belton
rule, and surely that created a reliance interest. 298 Yet, Justice Alito joined Montejo.
What about reliance on training regarding the rule of Michigan v. Jackson? Alito wrote a
defensive concurrence in Montejo justifying his vote to overrule on the ground that he
was ignored in Gant. No joke – that was his whole argument: “The treatment of stare
decisis in Gant fully supports the decision in the present case.” 299 Forget principle
(again); turnabout is fair play. If ever there were a case of activist overruling, Montejo
was it.
Of course, Montejo was an easy mark, one in which the Court could comfortably
hope to fly under the radar. The case garnered no significant notice from the time the
Court granted certiorari, through its decision. 300 There was a small bit of negative
commentary, but for the most part the decision was relegated to the back pages of
newspapers if covered at all. 301
One can’t prove conclusively that concern about public opinion drives the failure
to overrule Miranda, but the circumstantial evidence is pretty good. A majority of the
justices don’t like Miranda. (Why not, it is more difficult to say.) The public does. The
justices, or some of them, plainly are watchful of public opinion. When there isn’t much
297
See Gant, 129 S.Ct. at 1723 (Alito, J., dissenting (“Today's decision effectively overrules those
important decisions . . . .”); New York v. Belton, 453 U.S. 454 (1981).
298
Gant, 129 S.Ct. at 1728 (Alito, J., dissenting).
299
Montejo, 129 S.Ct. at 2094 (Alito, J., concurring).
300
To support this, I asked a research assistant to search the major newspapers database in Lexis at three
points in time. The results were sorted into front page news articles and non-front page news articles,
excluding editorials and irrelevant articles. This showed no news coverage of Montejo when the court
granted cert, one non-front page article at the time of oral arguments, and one front page story and four
non-front page stories when Montejo was decided.
301
See, e.g., Jesse J. Holland, Court relaxes rules on police questioning; Interrogations can start without
lawyer present, Boston Globe, May 27, 2009, at 6; David Stout, Court Eases Restrictions On Questioning
Suspects, N.Y. Times, May 27, 2009, at A15.
75
attention to a case, as in Montejo, activist overruling troubles the justices not one bit.
How else, then, to explain the failure to tip over the Miranda façade?
IV.
THE WAGES OF STEALTH “OVERRULING”
Although there was a great deal of commentary following the 2006 Term
decisions, much less space was given to the consequences of the Court’s conduct than to
criticizing or defending it in principle. There was sense to this, as any costs were, at that
point, merely speculative. But it is important to get a sense of the tangible costs of stealth
“overruling.” This is in part because one might say about the whole practice “so what,”
and in part because there actually is an important normative argument in favor of stealth
overruling. If one conceives of constitutional law as properly autonomous from political
pressure such as public opinion – and some of the justices and others do so conceive it –
then the Court might do well to decide constitutional cases in a way that immunizes them
from any sort of public backlash. 302 That would be stealth “overruling.” Whether this is
appropriate or not cannot help but turn in part on what the costs are of engaging in the
practice. This Part identifies three tangible costs.
Before turning to the wages of stealth “overruling,” it is important to touch briefly
upon one familiar line of argument not pursued here – the costs of a lack of “candor.”
Many commentators take the position that judicial decisions should be “candid.” 303 If so,
302
See Chisom, 510 U.S. at 400 (explaining that “ideally public opinion should be irrelevant to the judge's
role because the judge is often called upon to disregard, or even to defy, popular sentiment”); Rehnquist,
The Supreme Court, supra note ___, at 210 (noting that “we want our federal courts, and particularly the
Supreme Court, to be independent of popular opinion,” while praising ideology-driven presidential
selection of justices, as a vehicle for popular control of constitutional interpretation).
303
See Schwartzmann, Judicial Sincerity, supra note ___ (providing a nonconsequentialist argument for
judicial candor, grounded in moral and political values); Altman, Beyond Candor, supra note ___ (calling
for judges to be candid but not “introspective”); Idleman, A Prudential Theory of Judicial Candor, supra
note ___, at 1334-81 (stating and critiquing the nine principal rationales for judicial candor; Jacobs, Even
More Honest, supra note ___ (proposing a model of decisionmaking whereby the Supreme Court can be
candid about the value judgments it inevitably must make in interpreting the Constitution); Leflar, Honest
76
then stealth overruling seems to run contrary to this admonition.
What constitutes
“candor,” however, is itself a difficult question. 304 Even some commentators in favor of
candid judging nonetheless qualify the claim to say a judge need not reveal everything on
her mind; she must only put forward an acceptable public justification for her decision.
Of course, by definition stealth “overruling” flunks this test too. Yet, there are other
commentators who doubt the necessity or propriety of candor altogether. 305 They argue,
for example, that candid opinions can hurt the legitimacy of the judiciary, 306 that the
public may not obey controversial judgments if they are candidly phrased, 307 that legal
doctrine requires a leavening of falsehood to remain coherent and continuous, 308 that
“tragic choices” must be disguised rather than openly recognized, 309 that the production
of joint opinions requires some dissembling, 310 and even that dishonesty might
occasionally be necessary to prevent consequences that are morally abhorrent but legally
Judicial Opinions, supra note ___, at 740-41 (calling for judges to be candid about the “moral, social, or
economic” reasons for the their decisions); Shapiro, In Defense of Judicial Candor, supra note ___
(considering and mostly rejecting arguments against candor).
304
See Altman, Beyond Candor, supra note ___, at 297-98 (distinguishing candor from introspection);
Schwartzmann, Judicial Sincerity, supra note ___, at 992-97 (distinguishing sincerity from candor).
305
For three surveys of the arguments advanced against judicial candor, see Idleman, A Prudential Theory
of Judicial Candor, supra note ___, at 1381-95; Schwartzmann, Judicial Sincerity, supra note ___, at 98889; Shapiro, In Defense of Judicial Candor, supra note ___, at 739-750.
306
See Idleman, A Prudential Theory of Judicial Candor, supra note ___, at 1388-94 (citing unanimity,
civility, and doctrinal continuity as traits that enhance judicial legitimacy but which are sometimes
disserved by candor).
307
See Hirsch, Candor and Prudence, supra note ___, at 866 (“Assume… that, had the Court ordered
“integration” rather than “desegregation” in Cooper v. Aaron, its decision would have been greeted with
riots in the street and battles between state national guards and federal troops… Would anyone deny that it
is acceptable for the Court to resort to euphemism to prevent such results?”).
308
See Gilmore, Law, Logic, supra note ___, at 37 (“Another principle of legal growth is the maintenance
of a continuity of tradition through the pretense that change is not change”); Shapiro, In Defense of Judicial
Candor, at 739-742 (taking up and rejecting this argument); Idleman, A Prudential Theory of Judicial
Candor, supra note ___, at 1392-94 (taking a less skeptical view of this argument);
309
Calabresi, Tragic Choices (1978)
310
See Idleman, A Prudential Theory of Judicial Candor, supra note ___, at 1384-85; Greenawalt, Neutral
Principles, supra note ___, at 1007 (“Supreme Court Justices, and other judges, vary considerably in their
willingness to join opinions they do not find intellectually persuasive. To say that compromise is
sometimes appropriate is not of course to endorse it in every instance”).
77
compelled. 311 It is not at all clear that stealth “overruling” finds any justification in the
candor literature.
The closest possibilities are the difficulties of collegial decision-
making (treated above) and the value of obfuscation to the autonomy of constitutional
law (dealt with at greater length below). As for the benefits of candor, to the extent they
are tangible and capable of assessment, they are touched on below
A.
Sowing confusion in the lower courts
Supreme Court decisions serve as a set of instructions for the lower courts. The
Court’s opinions have a Janus-faced quality; they are written formally to provide a
justification for the disposition of a case. But their transcendent function is to set out the
law, which in turn guides lower court dispositions of many more cases. 312 If likes are
treated alike, ultimately it is not because the Court resolves every case according to this
ideal, but because it gives sufficiently clear and transparent marching orders to the lower
courts that they can dispose of cases in an equivalent fashion. 313 Political scientists
studying courts often see the lower courts as striving to impose their own preferences on
cases despite orders from above. 314 Though there may be some truth to this on occasion,
311
See Shapiro, In Defense of Judicial Candor, supra note ___, at 749 (endorsing an extremely narrow
exception to the obligation of candor, when the law compels a great moral wrong, such as genocide).
312
See Fallon, Constitutional Precedent, supra note ___, at 1156-58 (arguing that Justices feel and
“manifestly accept” an obligation to guide lower courts, among other actors); Tiller & Cross, What is Legal
Doctrine?, supra note ___, at 526 (canvassing the work of political scientists who demonstrate that
Supreme Court decisions drive lower courts); Wexler, Middle Way, supra note ___, at 326 (arguing that
“analogical crises,” when cases cannot readily be steered into scrict-scrutiny or rational-basis review,
should not be resolved by denying certiorari, as this violates the Court’s “institutional obligation to give
guidance to lower courts”).
313
See Hathaway, Path Dependence, supra note ___, at 652-54 (arguing that precedent encourages judges
to treat likes alike).
314
See Segal & Spaeth, Attitudinal Model Revisited, supra note ___ (presenting and testing the attitudinal
model of judicial behavior, which holds that judges impose their own views of constitutional meaning); id.
at 324 (finding that ideology correctly predicted 88% of the Supreme Court’s decisions between 1970 and
1976); McNollgast, Politics and the Courts, supra note ___, at 1636-37 (acknowledging the “standard
idealistic textbook model of judicial behavior,” but asserting nonetheless that judges “act rationally to bring
policy as close as possible to their own preferred outcome”); Cameron, Defiance, supra note ___, at 5
(“legal doctrine within the federal judiciary emerges from an unrelenting struggle between the few—the
hierarchical superiors—and the many— the hierarchical subordinates”).
78
a more likely understanding is that the lower courts will travel in the traces with the
Supreme Court if those traces are clear. 315
The first evil of stealth overruling is that it makes it difficult if not impossible for
the lower courts to know what they are being instructed to do. 316 When one says one
thing and does another, or deliberately obscures what one is saying, meaning naturally
gets confused and lost. This seems self-evident. And what is true of people generally is
equally true of institutions – if not more so given the formality of institutional
instructions in this instance. 317 Supreme Court opinions are perused and parsed for
meaning. And sometimes that meaning just eludes. This not only ensures likes are often
315
See Klarman, Jim Crow to Civil Rights, supra note ___, at 5 (observing that “when the law is clear,
judges will generally follow it”); Canon, Judicial Policies, supra note ___, at 49 (finding that “ambiguous,
vague, or poorly articulated” opinions are more likely to produce a range of dissimilar lower court
interpretations); Hardisty, Reflections, supra note ___, at 52-57 (arguing that lower courts follow a
precedent’s reasoning, as opposed to simply aping its result, when “the rule is unambiguous and clearly
formulated”); Howard, Courts of Appeals, supra note ___, at 164-65 (reporting on pioneering survey of
appellate judges that showed judges reported precedent to be very constraining except when unclear);
Staudt, Modeling Standing, supra note ___, at 659 (finding that judges adhere to clear precedent, but take
“an unpredictable approach to decisionmaking” when precedent is unclear). See also Kornhauser,
Adjudication, supra note ___ (describing the effects of resource constraints on judicial organization, and
suggesting that hierarchy and strict precedent confer efficiency benefits, at least when correct decisions are
possible and all players aspire to reach them). But see Johnson, Uses, supra note ___, at 333-34 (finding
the clarity and persuasiveness of a decision unrelated to lower-court compliance).
316
See Devins, Democracy-Forcing Constitution, supra note ___, at 1986 (“the principal consequence of
minimalist decisionmaking may be the delegation of decisionmaking authority away from the Supreme
Court and to lower federal courts”); Roosevelt, Constitutional Calcification, supra note ___, at 1691
(noting of Supreme Court “subterfuge” that “[i]t is confusing to lower court judges, who must puzzle out
how to follow a Court whose words diverge from its practice”; Rosen, Foreword, supra note ___, at 1330
(“When faced with a narrow, shallow Supreme Court decision… lower courts may literally be at a loss
about what the opinion means”); Sunstein, Foreword, supra note ___, at 17 (conceding that a minimalist
court can potentially “‘export’ decision costs to other people, including litigants and judges in subsequent
cases who must give content to the law”); But see Gerhardt, Irrepressibility, supra note ___, at 1290
(answering critics of Carhart by arguing that judicial minimalism is designed to leave room for democratic
actors, rather than maximizing “candor, clarity, or elaboration”); Gerhardt, Silence is Golden, supra note
___, at 494-95 (claiming that, rather than sowing confusion, judicial silence on precedent leaves room for
other and more democratic constitutional actors to weigh in); Rinner, Roberts Court Jurisprudence, supra
note ___ (arguing that “narrow holdings on constitutional questions can raise the cost of problematic
legislation, suggesting an indirect guidance function”).
317
See The Morality of Law, supra note ___, at 43 (“the desideratum of making laws known…lends itself
with unusual readiness to formalization”).
79
not treated alike, but it undermines the virtue of predictability almost universally thought
important in the law. 318
The reaction in the lower courts to Missouri v. Seibert is a case in point. In
Seibert, the Court ruled by a vote of 5-4, but the majority split into three separate
opinions. 319 In a gentle description of the situation, New Jersey’s intermediate appellate
said “[t]he Seibert opinions have sown confusion in federal and state courts, which have
attempted to divine the governing standard that applies in successive interrogation cases
involving warned and unwarned confessions.” 320
Many of the lower courts have followed Justice Kennedy’s opinion in Seibert, on
the basis that under the rule in Marks v. United States – which applies when there is a
fractured majority – Kennedy’s opinion offered the “narrowest” grounds supporting the
disposition. 321 There is some reason to believe this was a correct application of Marks.
Justice Kennedy, after all, says that unlike the plurality he would apply his multi-factor
analysis only in cases in which the police deliberately question outside Miranda.322 His
rule is similar (though not identical) to the plurality rule. 323
318
See The Morality of Law, supra note ___, at 39 (asserting that legality fails where legal rules are secret
or unintelligible); The Constitution of Liberty, supra note ___, at 156-57 (“[t]he rationale of securing to
each individual a known range within which he can decide on his actions is to enable him to make the
fullest use of his knowledge . . . . the law tells him what facts he may count on and thereby extends the
range within which he can predict the consequences of his actions”); Sunstein, Problems With Minimalism,
supra note ___, at 1914 (suggesting that minimalism is best applied to “’frontiers’ questions in
constitutional law” where “predictability is likely to be less important”); Waldron, Rule of Law, supra note
___, at 6 (discussing certainty and predictability as often-cited features of the rule of law).
319
Siebert, 542 U.S. 600.
320
State v. O’Neill, 388 N.J. Super. 135, 148 (App.Div 2006).
321
Marks v. United States, 430 U. S. 188 (1977). Six circuits regard Justice Kennedy’s concurrence as
controlling. See U.S. v. Naranjo, 426 F.3d 221, 231–32 (3d Cir. 2005); U.S. v. Mashburn, 406 F.3d 303,
308–09 (4th Cir. 2005); U.S. v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); U.S. v. Torres-Lona, 491 F.3d
750, 758 (8th Cir. 2007); U.S. v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006); U.S. v. Williams, 435 F.3d
1148, 1157 (9th Cir. 2006).
322
Siebert, 542 U.S. at 621–22 (Kennedy, J. concurring).
323
Compare Siebert, 542 U.S. at 611–12 (plurality) with Siebert, 542 U.S. at 621–22 (Kennedy, J.,
concurring).
80
Other courts, however, have found “it a strain at best to view [Kennedy’s]
concurrence taken as a whole as the narrowest ground on which a majority of the Court
could agree.” 324 This was the position of a panel of the Seventh Circuit in United States
v. Heron.325 Why? Because “Justice Kennedy’s intent-based test was rejected by both
the plurality’s opinion and the dissent in Seibert.” 326 Even assuming that in his own
concurrence Justice Breyer agreed with Justice Kennedy (and “it is hard to be sure,”
notes the Seventh Circuit), that still leaves Justice Kennedy’s view governing by a vote of
2-7. 327 Not so good when it comes to making law. 328 As if to underscore the observation
of the New Jersey court, however, prior to Heron a different panel of the Seventh Circuit
appeared to give greater weight to Kennedy’s concurrence. 329
Though some courts facing this confusion have simply punted and analyzed cases
under both standards, 330 there is a non-trivial subset of cases in which the outcome rests
324
Heron, 564 F.3d at 884. See also; U.S. v. Rodriguez-Preciado, 399 F.3d 1118, 1141 (9th Cir. 2005)
(Berzon, J., dissenting) (“Marks does not prescribe the adoption as governing precedent of a position
squarely rejected by seven Justices . . . . If Justice Kennedy's opinion does not govern, then what does?
There are three possibilities: The dissent controls; the plurality controls; or there is no controlling position,
and we are free to start from scratch. . . . I suggest that Seibert leaves this court in a situation where there is
no binding Supreme Court or Ninth Circuit precedent as to the governing standard.”)
325
Heron, 564 F.3d at 884–85.
326
Heron, 564 F.3d at 884.
327
Heron, 564 F.3d at 884
328
For cases concluding that Justice Kennedy represented the narrowest grounds taken by those who
concurred (the more common view), see, e.g., U.S. v. Naranjo, 426 F.3d 221 (3d Cir. 2005); U.S. v. Black
Bear, 422 F.3d 658 (8th Cir. 2005); U.S. v. Courtney, 463 F.3d 333 (5th Cir. 2006); U.S. v. GonzalezLauzan, 437 F.3d 1128, 1136 (Fla. Dist. Ct. App. 2d Dist. 2006). For cases expressing uncertainty or
adopting the plurality as the holding, See U.S. v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006)
(“[T]he Marks rule produces a determinate holding ‘only when one opinion is a logical subset of other,
broader opinions.’ When the plurality and concurring opinions take distinct approaches, and there is no
‘narrowest opinion’ representing the ‘common denominator of the Court's reasoning,’ then Marks becomes
‘problematic.’ (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc)).; U.S. v. Heron, 564
F.3d 879, 884 (7th Cir. 2009) (noting that Kennedy’s reasoning was “rejected by both the plurality opinion
and the dissent”); State v. Farris, 109 Ohio St.3d 519, 527 (2006).
329
See U.S. v. Stewart, 388 F.3d 1079 (7th Cir. 2004) (stating that if a failure to warn was deliberate “then
the analysis of the Seibert plurality and Justice Kennedy's concurrence merge, requiring an inquiry into the
sufficiency of the break in time and circumstances between the unwarned and warned confessions.”)
330
See, e.g., Pacheco-Lopez, 531 F.3d at 426–430; Carrizales-Toledo, 454 F.3d at 1151–53; Lucas, 2009
WL 1798610, at *3.
81
on determining which test is the law. Justice Souter chose an “objective” test that looks
to how a reasonable suspect might see things. 331
The reasonable suspect might be
puzzled indeed to have a confession extracted from him, only to be warned not to talk –
and then to be questioned further! He might think the warnings were nothing but a
charade. Justice Kennedy’s test, on the other hand, looks initially to whether the police
were doing engaging in the charade deliberately. 332 So, in cases in which the police were
not acting in bad faith – as the applying court understands the concept – yet the suspect
was confused nonetheless about the freedom to stay mum after the Miranda warnings
finally were delivered, the suspect will win under Souter’s test, and lose under
Kennedy’s. 333 In these cases there is no escape from determining which test governs.
Confusion in the lower courts arises precisely because the Court cannot bring
itself to overrule Miranda – though there are a majority of the justices who would like to.
Justice Kennedy’s own opinion is confused because he is trying to have it both ways. He
331
Siebert, 542 U.S. at 611–12.
Siebert, 542 U.S. at 622 (Kennedy, J., concurring).
333
See Heron, 564 F.3d at 885 (discussing “defendant-focused” and “intent-based” tests). The only thing
standing in the way of this being a more pressing problem is that courts seem reluctant to ever exclude
statements, even when the need to do so seems evident. Thus, in U.S. v. Medina the defendant was
interrogated by an agent of the Immigration and Customs Enforcement agency (ICE) who did not read
Mirandas because the interrogation was for “administrative deportation purposes”. Medina, 2008 WL
2039013, at *3. Apparently Mirandas are not always required by ICE investigations, because deportation
hearings are civil and not criminal, I.N.S. v. Lopez-Mendoza, 468 U.S. at 1038, a difficult concept to
understand. Thus, the Court found even though the interrogation violated Miranda, there was not a
deliberate strategy to do so. However, the same agent asked the same questions of the defendant, separated
by a three-day gap. The court held that the statement could come in under the Seibert plurality, but it was a
“closer call.” Medina, 2008 WL 2039013, at *9 n.9. Yes, closer, if not outright wrong – the other fact that
was important to the court was that the official obtained new evidence of a criminal violation in the interim.
But this fact would seem to go to the agent’s intent, not the objective impression of the suspect. If nothing
but a three-day gap in interrogation solves the Miranda problem, Seibert becomes a very nifty way around
Miranda. See also infra discussing lower court interpretation of what constitutes a deliberate failure to read
Miranda warnings. For other cases in which the application of Kennedy’s or Souter’s test might matter, see
Heron, 564 F.3d 879, which may be more of a travesty. The court held Kennedy’s test inapplicable even
though a DEA agent with almost ten years experience failed to read Miranda warnings in a case clearly
calling from them; the court admitted the statement under the Seibert test even though it “acknowledge[d]
that some of these (unweighted) factors suggest that the court should have excluded” the statements.
Again, the passage of time seems to have become determinative in this “close case.” Cf. Pacheco-Lopez,
531 F.3d at 427 and Carrasco-Ruiz, 587 F.Supp.2d at 1093 (suppressing statements where no break
occurred between the unwarned and warned interrogations).
332
82
plainly was trying to muster some outrage in Seibert in response to the practice of
questioning outside Miranda. “This tactic relies on an intentional misrepresentation of
the protection that Miranda offers and does not serve any legitimate objectives that might
otherwise justify its use.” 334 Still, when the rubber hit the road, i.e., in fashioning the test
he would apply, Justice Kennedy’s outrage crumpled into a search for “curative
measures” that subsequent cases confirm punish the “deliberate” misconduct pretty much
not at all. 335 That’s because, as Justice Kennedy told us during his confirmation hearings,
and as he made clear in Patane, he doesn’t like Miranda much. 336
This problem of mixed signals is hardly confined to fractured majority cases; it is
pervasive when the Court overrules by stealth. Fragmentation exacerbates the problem,
of course, but even when fragmentation is absent, confusion results from stealth decisionmaking. For an example in this line of cases we need look no further than the aftermath
of Dickerson v. United States. Dickerson purported to reaffirm Miranda, but it also
upheld all the prior cases that seemed inconsistent with it. 337 Lower courts were naturally
confused (and split) on recognizing any exceptions to Miranda beyond those explicitly
affirmed in Dickerson.338 Outside the Miranda context, the same problem was apparent
334
Siebert, 542 U.S. at 620–21.
See Siebert, 542 U.S. at 622 (Kennedy, J., concurring) (stating that such curative measures would be
met in most instances by a “substantial break in time and circumstances” between the two statements, and
that an “additional warning that explains the likely inadmissibility” of the first statement “may also be
sufficient.”).
336
See Patane, 542 U.S. at 644–45 (Kennedy, J., concurring); Nomination of Anthony M. Kennedy to be
Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the
Judiciary, 100th Cong. 204–06 (1987). The same might be said of the dissenting justices, most of whom
have themselves not shown much love for Miranda, though some of them cannot bring themselves to
overrule it. Justice O’Connor has lauded Miranda’s bright line, but her decision in Elstad – taken to a fare
thee well in Seibert – turns that bright line into a permeable membrane. Confusion is inevitable in this sort
of circumstance, and it is not simply the fault of a fractured majority.
337
Dickerson, 530 U.S. at 429.
338
See, e.g., Patane, 542 U.S. at 634 (noting the circuit split, after Dickerson, on admissibility of physical
fruits of unwarned statements); Ambach, Poisoned Fruit, supra note _____, at 761 (describing the “crux” of
335
83
with regard to the 2006 decisions. For example, the principal opinion in Wisconsin Right
to Life so clearly signaled the death of McConnell despite what the justices said, that the
Court was quickly forced to confront the question it claimed to have ducked. 339
Moreover, fragmentation itself is a by-product of stealth “overruling” because, as in the
2006 Term cases, some justices bite the bullet and vote to explicitly overrule, while
others do not, inevitably muddying waters. When stealth “overruling” occurs, confusion
is a common result. 340
B.
Encouraging defiance and defection
But the problem goes much deeper – to the very roots of respect for the rule of
law. In cases like Seibert and Patane, the Court’s short-term, internecine struggle over
policy is trumping its long-term vision of institutional respect. Stealth overruling sends
messages not just of confusion, but of a more invidious kind.
Basically the Court has made a game out of compliance with its edicts. Miranda
plainly said that officers have to read rights to suspects subjected to custodial
the circuit split as lying in “interpretations of the impact of Miranda’s warnings and waiver as a
constitutional right, and not merely a prophylactic safeguard.”).
339
Citizens United v. FEC, [cite] involves a new challenge to Section 203 of the Bipartisan Campaign
Reform Act, brought this time by a nonprofit group that had sought to air a 90-minute documentary critical
of then-Senator Hillary Clinton during the 2008 Democratic primaries. The questions presented on
reargument included, not just whether the film constituted the “functional equivalent” of express advocacy
as required by McConnell to uphold a ban, but whether Section 203 of the Act was facially invalid—a
conclusion that would at least compel McConnell’s reversal.
340
For example, a somewhat bewildered Ninth Circuit panel, in deciding Morse the first time around,
commented that “[t]here has to be some limit on the school's authority to define its mission in order to keep
Fraser consistent with the bedrock principle of Tinker.” Frederick v. Morse, 439 F.3d at 1120. Similarly,
two years after Hein, a district court in Michigan considered a taxpayer’s Establishment Clause challenge
to the 2008 bailout statute in Murray v. Geithner, 624 F.Supp.2d 667 (E.D. Mich. 2009). The government,
arguing for a narrow reading of Flast, noted in passing that “two members of the Supreme Court [in Hein]
voted to eliminate this exception to the general rule against taxpayer standing by overruling Flast.” Brief
in Support of Defendant’s Motion to Dismiss at 11 n.14, Murray v. Geithner, 624 F.Supp.2d 667 (E.D.
Mich. 2009) (Civil No. 08-15147). The court itself expressed uncertainty about how much of Flast
remained, alluding to the Hein Court’s statement that “[w]e leave Flast as we found it,” 551 U.S. at 2572.
The district court wryly commented, “[t]he Supreme Court did not articulate explicitly the condition in
which it found Flast but suggested that it is a novelty, effectively collecting dust on a shelf somewhere.”
Murray, 624 F.Supp.2d at 673. The Murray court then hazarded that the taxpayer-standing exception
“despite its fragile state, remains the law of the land.” Id.
84
interrogation. 341 Many acknowledged that whatever else one might think of it, Miranda
provided a bright line rule. 342 But this is hardly true today. In a series of ever more
disingenuous decisions, the Justices have encouraged police officers to ignore the Court’s
own seminal precedent. The justices cannot bring themselves to overrule Miranda, so by
winks and ex post approval they encourage disobedience. What they can’t do, the police
can do for them. The clear signal everyone seems to be getting from cases like Seibert
and Patane is “do as we imply, not as we say.” 343 And then when the police take the
hint, the justices are quick to pat them on the head.
Examining the cases involving police conduct after Seibert and Patane lands the
reader in a virtual cabbage-patch of disingenuous behavior, or flat-out ignoring of
Miranda. In some small number of the cases, a judge actually blows the whistle on
police. 344 But mostly not. In case after case after case, Miranda warnings are not read,
without any really plausible explanation why. 345 Courts acknowledge the violations:
“The critical point, however, is undisputed,” writes the Seventh Circuit: “Heron was not
341
Miranda, 384 U.S. at 478–79.
Elstad, 470 U.S. at 307 n.1 (noting a Miranda violation is entitled to “a bright-line legal presumption of
coercion”); Roberson 486 U.S. at 681 (“We have repeatedly emphasized the virtues of a bright-line rule in
cases following Edwards as well as Miranda.”); Anderson, 516 F.3d at 790 (rejecting the prosecution’s
argument as the “kind of conjecture and hair-splitting that the Supreme Court wanted to avoid when it
fashioned the bright-line rule in Miranda.”); Schauer, Opinions as Rules, supra note _____, at 1470
(suggesting it is appropriate “at times” for the Court to “delineate exactly what primary actors should do”).
But see Williams, 507 U.S. at 711 (O’Connor, J., concurring in part) (“Miranda, for all its alleged
brightness, is not without its difficulties. . . .”).
343
See, e.g, Kamisar, Postscript, supra note _____, at 105. (“Doesn't the Court care that when the police fail
to administer the Miranda warnings to custodial suspects, they are disobeying the law while enforcing it?
Doesn't the Court care that when the prosecution is allowed to use the physical fruits of police failures to
comply with the Miranda rules, they “invite” the police to turn their backs on Miranda?).
344
See, e.g., Carrasco-Ruiz, 587 F.Supp.2d at 1094 (“[N]o plausible explanation has been offered for
failing to give [the defendant] the Miranda warnings at the beginning of the interrogation.”); U.S. v. VillaGonzalez, No. 8:08CR242, 2009 WL 703682, at *13 (D. Neb. March 16, 2009) (suppressing, under the
Fourth Amendment, physical evidence obtained in the execution of a search warrant obtained on the basis
of statements the defendant made after invoking his right to counsel).
342
345
85
given Miranda warnings at this interview.” 346
Officers investigating a vehicular
homicide lock the suspect in the back of a police car and interrogate him:
no
Mirandas. 347 Officers take a suspect into custody and confront him with illegal drugs,
asking whose they are. No Mirandas. 348 Or, Miranda warnings are read and suspects
assert their rights, only to have them ignored. 349 People ask for lawyers, and agents plow
on. 350 Particularly in Patane “fruits” cases, lawyers for the government readily concede
the Miranda violation. 351 After all, it doesn’t matter, because the physical evidence
necessary for conviction will still be admitted.
Further troubling, a reading of the cases suggests the greatest “offenders” are
federal law enforcement officials. From the cases it practically seems like the Drug
Enforcement Agency officers are being trained to forego Miranda.352 (The actions of
ICE agents are even less palatable.) 353 And why not? In many drug and weapons cases
all that is needed to convict is the contraband itself. Finding out where it is located does
the trick, so the result in Patane encourages foregoing Miranda warnings entirely. And if
the need is to connect the suspect with the goods, Seibert says ask suspects first before
346
347
Heron, 564 F.3d at 883.
Tengbergen, 9 So.3d at 732.
348
349
350
See, e.g., Brown v. State, 663 S.E. 2d 749, 754 (Ga. 2008) (allowing police to use statements obtained
after a suspect’s clear request for counsel to support a warrant to obtain DNA from that suspect).
351
See, e.g., Thevenin, 948 A.2d at 860 (“It is conceded that no Miranda warnings were given to [the
suspect] before he was asked if he wanted the police to do a full search of the house or if he wanted to
reveal where the drugs were hidden.”); Knapp, 700 N.W. 2d at 903 (recounting testimony of a detective
who said he intentionally withheld warnings in an effort to “keep the lines of communication open” after a
suspect said he had been warned by an attorney not to speak with police.).
352
See, e.g., Reyes, 2007 WL 419636, at *3 (admitting physical evidence DEA agents obtained after telling
a suspect he was under arrest, handcuffing him, and surrounding him with armed agents but not
Mirandizing him despite later admitting they had a “specific investigative purpose” in their questioning);
Carrasco-Ruiz, 587 F.Supp.2d at 1094 (suppressing statements after DEA agents interrogated the suspect
for three minutes, and he made incriminating statements, before providing Miranda warnings);
353
See, e.g., Heron, 564 F.3d 879; Villa-Gonzalez, 2009 WL 703862, at *3 (recounting testimony of an
ICE agent who interviewed three suspects and “never Mirandized anyone” said if any admitted to being
deported in the past “he would ordinarily provide a Miranda warning to an interviewee at that point.”),
86
they have their wits about them, get an answer, then switch venues or allow enough time
to meet Souter’s and Kennedy’s multi-factored tests, then elicit the confession again.
Miranda is reduced to a formality when it is used at all.
Unless one is willing to believe that some forty years after Miranda law
enforcement officials simply do not know they have to read the warnings, or forget them
a lot, the conclusion is evident: they simply are dispensing with them because, all things
considered, law enforcement does better by ignoring the requirement. The justices in
Seibert seemed surprised that Elstad would become a prescription for questioning outside
Miranda.354 But the justices are unavoidably complicit. As it seems that everyone but
the justices understand, judicial decisions create ex ante rules for behavior.
Every
decision blessing what the police did in the case before them is an invitation to law
enforcement to do the same in the next case.
It’s not just the agents – the Supreme Court’s decisions have reduced the lower
courts to a group of post hoc rubber-stamping magistrates who seem by-and-large to have
lost any appetite for enforcing the rules, even when there is room to do so. They too
seem to have received the message from on high. Once again, not to overstate things
there are the occasional judges and courts that simply cannot excuse blatant subterfuge.
But most simply go along. In the vehicular homicide case mentioned above, the court
actually stated “The fact that [the suspect] was questioned while handcuffed in the
backseat of a police vehicle without Miranda warnings does not in and of itself show a
deliberate and calculated method to undermine the safeguards guaranteed in Miranda.” 355
But what was it, then? Total incompetence? And what about the second statement,
354
See Siebert, 542 U.S. at 609 (“The technique of interrogating in successive, unwarned and warned
phases raises a new challenge to Miranda.”).
355
Tengbergen, 9 So. 3d at 735.
87
obtained after Mirandas were read? The appellate court explained that one was admitted
because two hours passed in the interim and “[t]he first statements appeared to be
extremely brief and contained no detailed information – merely that required to prepare
an accident report.” 356
One gets the impression not much came out of the first
interrogation. Except that the Court told us several pages earlier, in its description of the
facts:
[Officer] McNevin went over to Tengbergen [the suspect] who was still in
handcuffs in the police vehicle. McNevin introduced himself as the lead
investigator on the accident. He did not indicate that he was conducting a
criminal investigation. McNevin asked Tengbergen what happened, and
Tengbergen told him that ‘a person appeared out of nowhere and he
struck him.’ 357
No detailed information? Perhaps. But if this is not a confession, it is difficult to
know what would be.
Heron, the Seventh Circuit case, provides yet another vivid example of judges
just a little too reluctant to exclude evidence seized in violation of Miranda. In Heron,
police – working on a tip – stopped a long-haul truck in the wee hours of the morning,
and took the drivers into custody. 358 A couple hours later, a DEA agent (accompanied
by a local police officer) came to interrogate one of the suspects. 359 The DEA agent did
not read Miranda warnings, a failure that seems utterly inexplicable. The agent then did
the same thing thirty-two hours later, “except this time they did administer Miranda
warnings.” 360 The defendant, Heron, “points out that [the DEA agent] testified that she
had been with the DEA for nine-and-a-half years, and he argues that the court could
356
Tengbergen, 9 So. 3d at 735–36.
Tengbergen, 9 So. 3d at 732 (emphasis added).
358
Heron, 564 F.3d at 881.
359
Heron, 564 F.3d at 881–82.
360
Heron, 564 F.3d at 882.
357
88
have inferred the requisite impermissible intent under Kennedy’s opinion in Siebert
directly from the fact that she failed to take the precaution of administering Miranda
warnings. . .” 361 The court’s decision to admit the statement is worth quoting at length:
While this may have been a possible inference, the district court was not
compelled to make it. We cannot find that the court committed clear error
in crediting [DEA agent] Scott’s testimony that her lack of precaution was
an honest mistake. The court was entitled to conclude that it was
reasonable for her to assume Heron would have been given Miranda
warnings upon arrest. There is also a question whether the [first] meeting
was called in response to Heron’s request, or if instead someone from the
Fairchild Heights Police Department requested the meeting. We decline
to engage in speculation about whether the police or Heron initiated the
meeting, because nothing turns on it. Law enforcement cannot be
expected to keep track of the identity of every person who makes a phone
call on behalf of another department. 362
Almost everything is wrong with this. To begin with, the story that the DEA agent failed
to read Miranda warnings on the assumption they’d been given previously is pretty farfetched. If the hope was to obtain information, why risk it? In the days before Elstad,
Seibert and Patane, one got the impression from reading cases that police officers read
Miranda warnings every time they bumped into a suspect. 363 For another, it is unclear
why it mattered who called the DEA agent, the suspect or the Fairchild police: Miranda
warnings still needed to be read. Similarly, it is unfathomable why the court says
“nothing turns on it.” Under the court’s own reasoning thus far, everything turns on it,
because the court is implying by relating the DEA’s theory that it somehow mattered who
initiated the conversation. Finally, note how the Seventh Circuit panel – the judges of
which surely know a stinky fish when they smell one – avoid taking direct responsibility
361
Heron, 564 F.3d at 882.
Heron, 564 F.3d at 886.
363
See, e.g., Rhode Island v. Innis, 446 U.S. 291.
362
89
for the result, couching their analysis in what must by this point be seem extraordinary
deference to the odd conclusion of the trial court. 364
The lower courts have gotten the message that Miranda does not matter – so
much so, that they are running past the Supreme Court’s stated tests.
Take, for
example, Justice Kennedy’s resolution of Seibert. In distinguishing Elstad from the
conduct in Seibert, Justice Kennedy said that “The police used a two-step questioning
technique based on a deliberate violation of Miranda. The Miranda warning was
withheld to obscure both the practical and legal significance of the admonition when
finally given.” 365 And [i]f the deliberate two-step strategy has been used, “postwarning
statements that are related to the substance of prewarning statements must be excluded
unless curative measures are taken before the postwarning statement is made.” 366
One might have read Justice Kennedy in Seibert as saying that any time
Miranda warnings were withheld deliberately before obtaining the first statement, then
curative measures were required. But lower courts have interpreted that opinion to
mean absent a deliberate, pre-established two-step procedure– effectively some sort of
364
This was the same Seventh Circuit panel that struggled to decide whether Justice Souter’s or Justice
Kennedy’s test governed after Siebert, but it is difficult to know why the court bothered engaging in its
Talmudic analysis, given its apparent reluctance to exclude the evidence no matter what the test. All the
Souter factors point to excluding the defendant’s second statement, but one: the thirty-two hours between
interrogations. Heron, 564 U.S. at 886–87. The investigator was the same, the questions were the same, the
setting was the same, etc. (There was some discontinuity of personnel, but the interrogator was the same
DEA agent. See Heron, 564 F.3d at 882.) So how to deal with this? The Heron Court subtly chastised
Justice Souter for not telling it clearly enough which factor mattered most: “We acknowledge that some of
these (unweighted) factors suggest that the court should have excluded Heron’s May 11 statements (and
likely the questions that elicited the statements).” Heron, 564 F.3d at 886. As for the time gap: “While this
is a close case, nothing in the Seibert plurality opinion condemns us to a mechanical counting of items on a
list . . . Here the lengthy temporal separation between Heron’s first and second encounters persuades us that
the district court did not err when it found that the later warnings served their intended purpose.” Heron,
564 F.3d at 887. Once again, the principal aspect of the decision is deference to the lower court, though it
is less than clear this is a question of fact that warrants such deference. On the attractiveness of this
approach, see Posner, How Judges Think, supra note ____, at 47 (“It is also easier to write a convincing
opinion affirming a decision after ruling that the lower court's decision was entitled to deferential review, as
it is easier to show that the decision is not clearly wrong than to show it is right.”).
365
Siebert, 542 U.S. at 620.
366
Siebert, 542 U.S. at 622.
90
policy – then the failure to read the first Mirandas essentially is ignored altogether when
evaluating the second statement. 367 It is difficult to believe this is even what Justice
Kennedy meant. In case after case in which it is impossible to regard the failure to read
the warnings as a mistake, courts still overlook this absent some sort of evidence of a
deliberate two-step procedure – e.g., an admission by police that they had been trained
to do so and did so purposely. 368 Anything short of a blatant admission, and the
defendant appears to lose, no matter how difficult it is to understand why Miranda
warnings were not read.
Yet, after Seibert cops would be stupid to make such
admissions – and cops aren’t stupid.
Patane also has invited just this sort of willful disregard for Miranda. Here’s
but one example, out of many. 369 Executing a search warrant, officers not only fail to
read Miranda warnings, but they threaten to tear the house apart if the defendant
doesn’t say where the drugs are. 370 Clever tactic; the defendant is pushed into telling
the police where the drugs are, and the reviewing court blesses admission of the drugs
under Patane. The problem is that the drugs were hidden with great ingenuity; the court
367
See, e.g., Jump, 983 So.2d at 727 (finding failure to Mirandize before eliciting information that drugs
belong to suspect was not deliberate); Pounds, 2008 WL 4603273, at *7, (finding no “planned or
deliberate” violation when police admitted their first interrogation violated Miranda but two new officers
interrogated the suspect an hour later after reading warnings); Walker, 518 F.3d at 985 (finding no
“deliberately coercive or improper tactics” when an arresting officer asked if the suspect owned marijuana
found in his house, then interrogated him a day later about additional marijuana).
368
For one such admission, see Knapp, 700 N.W.2d at 903 (suppressing a statement after an officer
testified he withheld Miranda warnings out of fear the suspect would ask for counsel if advised of his
rights).
369
Thevenin, 948 A.2d at 859. See also Overbay, 2009 WL 400638, at *4–5 (failing to Mirandize a murder
suspect after arresting him and asking him where a car and the murder weapon were located); Knapp, 700
N.W.2d at 93 (failing to Mirandize a murder suspect out of fear he would ask for an attorney if advised of
his rights); Martin, 827 N.E.2d at 215–16 (failing to Mirandize a suspect the court deemed “clearly in
custody” and instead telling him he could “expedite the process” by showing officers the location of his
gun); Brown, 663 S.E.2d at 271 (ignoring a suspect’s request for a lawyer, in violation of Edwards v.
Arizona, 451 U.S. 477, to obtain physical evidence).
370
Thevenin, 948 A.2d at 860. The defendant was brought to his house by police in handcuffs after being
arrested without a warrant several miles away. Police then informed him they were holding his girlfriend in
custody before threatening to tear the house apart if he did not explain where the drugs were hidden.
91
itself refuses to find they would have been inevitably discovered. 371 Absent the threat
they’d likely never have been found. 372 One might be tempted to wonder about the
compulsion of the police threat, but this is the very thing that has gotten lost in the
Miranda game. 373 Instead, the court said, “we want to encourage the police to give a
defendant . . . the opportunity to avoid a major disturbance to his or her house prior to
an invasive search.”
374
Before drawing this line of criticism to a close, one feels compelled to argue that
criminals are bad, and locking them up is good. Vehicular homicide under the influence
of drugs or alcohol, widespread drug dealing, not to speak of murder, rape, and
convicted felons possessing firearms:
all these are terrible things, and society is
unequivocally better off without them. It is easy to see why courts strain to lock these
folks up.
Still, the game being played here is a little nauseating too, if one cares at all
about the rule of law. Miranda is on the books. The very opinions that admit these
statements purport to be following it. Yet, for anyone with a rudimentary understanding
of the constitutional law of confessions, the subterfuge is apparent. Not just the police
and government agents, but, sadly, the entire judiciary is participating in one giant
sham. Cops ignore Miranda. They no longer even have to explain why they did –
371
The drugs were hidden in the ceiling above a light fixture in one of the house’s bedrooms. There were
two visible dots on the area adjacent to the fixture, and a stepladder nearby that could be used to reach the
area. When a magnet was held against one of the dots, the light fixture would descend, revealing the hiding
place. Commonwealth’s Reply Brief at *13, Thevenin, 948 A.2d 859, No. 3420 EDA 2006 (Pa. Super. Ct.
Feb. 26, 2008).
372
See Thevenin, 948 A.2d at 862 (“considering the elaborate mechanism used to hide the drugs, it is far
from clear that the police would have found this hiding place.”).
373
Indeed, prosecutors actually argued the threat was further proof of the admissibility of the drugs,
because the willingness of police “take the property apart” until they found the drugs showed that the drugs
would be inevitably discoverable. Commonwealth’s Reply Brief at *13, Thevenin, 948 A.2d 859, No. 3420
EDA 2006 (Pa. Super. Ct. Feb. 26, 2008).
374
Thevenin, 948 A.2d at 861.
92
though occasionally explanations are given that demonstrate their sharp awareness of all
the gray area of which they can take advantage. Courts then ignore the failure to adhere
to Miranda. After all, what Miranda effectively now says is: interrogate without
reading warnings, then either (a) obtain sufficient physical evidence to ensure
conviction; or (b) wait a bit, then read the warnings, and hope to obtain the confession
again.
This is a dangerous game for the nation’s highest court to be playing. Back in
the days of the Warren Court, political scientists engaged in “compliance” studies to see
if what was pronounced as law – in areas involving school desegregation, or prayer in
schools – had any bite on the ground. 375 Their point was that the Court lacked the
power and authority – the supremacy, if one will – commonly attributed to it.
Now, though, the Court undermines itself. It is teaching that the thing to do is
ignore the precedents in preference for the hints that those precedents are disliked. 376
Winking breeds contempt:
contempt for the law, and for the court’s own
pronouncements. The justices on the Court who hate Miranda are winning this round
on the merits, but at what cost? One is reminded of the story about the boy who cried
wolf. One day the Court will majority will mean what it says, and will be surprised
when its audience decides to follow the dissents instead.
C.
Public participation in the endeavor of constitutional law
375
See, e.g. Blaustein, Avoidance, Evasion, and Delay, supra note ___, at 100 (noting the proliferation of
measures taken by Southern state governments to circumvent the mandate of Brown); Levine,
Constitutional Law and Obscene Literature, supra note ___, at 130 (reporting that the obscenity case
Ginzburg v. United States, 383 U.S. 463 (1966) had had “miniscule” impact on the practices of
booksellers); Murphy, Lower Court Checks, supra note ___ (reporting defiance in lower Southern courts of
the U.S. Supreme Court’s desegregation rulings). But see Baun, Lower-Court Response, supra note ___
(questioning the gloomy picture of compliance offered by these scholars).
376
See Laskowski, 546 F.3d at 827 (commenting that the Hein court’s treatment of Flast “is not a ringing
endorsement,” and therefore confining Flast “to the result in Flast”).
93
This brings us to what may be the best argument in favor of stealth “overruling,”
and at the same time the greatest difficulty with the practice, depending on how one sees
it. This is the argument, alluded to above, that by obscuring what the Court is doing, the
justices help preserve the autonomy of law from public scrutiny, and any concomitant
pressure that the public opinion might bear. This argument rests in what at times, and in
some quarters, has been the dominant understanding of how a Constitution and
constitutional government are to operate. (“At times” because this assuredly was not how
a constitution was understood at the time of the framing; and is perhaps not how it is
understood today; “in some quarters” because people undoubtedly hold widely divergent
understandings of how the Constitution is supposed to operate. 377) Nonetheless, it is a
deeply odd if not troubling argument, resting as it does on a lack of transparency and
public scrutiny.
1.
The case for stealth overruling, and its premises
Under almost any account of what it means to be a Constitution, there should be
some separation from immediate popular or political preferences. Constitutions provide
the means for setting ground rules, protecting rights and fundamental values, and
constraining the will of transient political majorities. Constitutions are almost always
understood to be relatively obdurate in meaning. A Constitution ought to be something
other than an ever-shifting charter reflecting popular and transient preferences. 378
377
See Kramer, The People Themselves, supra note ___, at 15 (noting that the British constitution could be
altered by “clear, convulsive expressions of popular will” like the Glorious Revolution); Reid,
Constitutional History (abridged), supra note ___, at 7-8 (noting that customary law had its root in the
popular will as expressed over many generations); Friedman, Will of the People, supra note ___ at 376
(noting modern-day expectation that the Court will attend to public opinion).
378
See Eisgruber, Constitutional Self-Government, supra note ___, at 16-18, 20-25 (discussing the
constitutional obduracy that results from the rigid amendment procedures of Article V)
94
The normative case in favor of stealth overruling, then, is that it serves to protect
the Constitution from the passing whim of popular majorities. 379
If decisions are
unpopular, so the argument runs, the justices might feel pressured to buckle and abandon
them. Thus, stealth “overruling” actually protects the integrity of constitutional law by
obscuring from the public what the justices are doing.
Note that this normative case for stealth overruling necessarily rests an
extraordinarily juris-centric understanding of constitutional meaning, one that views the
judiciary as the true if not sole keeper of the Constitution. After all, the concern is that
judicial interpretations will be distorted by public opinion or political pressure. Thus, the
latter are illegitimate sources of constitutional meaning, while the former are acceptable.
The justices at various times have made both these claims, i.e. that the judiciary alone
gives meaning to the Constitution, and that its decision-making should be impervious to
public opinion. 380
379
See Roosevelt, Constitutional Calcification, supra note ___, at 1691 (noting with disapproval that
judicial subterfuge “suggests a lack of faith in either the lower courts or the unannounced rule, or perhaps a
belief that society will not accept it”).
380
For the first claim, see Boerne, 521 U.S. at 529 (noting that “if Congress could define its own powers by
altering the Fourteenth Amendment's meaning, no longer would the Constitution be ‘superior paramount
law, unchangeable by ordinary means.’” (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803))); Garrett, 531 U.S. at 365 (noting “the long-settled principle that it is the responsibility of this
Court, not Congress, to define the substance of constitutional guarantees”); Ginsburg, Overview, supra note
___, at 1022 (stating that “Congress… cannot say with finality whether its own acts are constitutional. That
function is properly committed to a separate department--a detached, impartial, life-tenured judiciary that is
not judging its own cause”).
For the second claim, see Scalia, Originalism, supra note ___, at 854 (calling the Constitution “in
its nature the sort of ‘law' that is the business of the courts…If the Constitution were not that sort of a ‘law,’
but a novel invitation to apply current societal values, what reason would there be to believe that the
invitation was addressed to the courts rather than to the legislature?”); Casey, 505 U.S. at 963-64
(Rehnquist, C.J., concurring in part and dissenting in part) (“The Judicial Branch derives its legitimacy, not
from following public opinion, but from deciding by its best lights whether legislative enactments of the
popular branches of Government comport with the Constitution”); Casey, 505 U.S. at 999 (Scalia, J.,
concurring in part and dissenting in part) (expressing “distress” that “so many of our citizens… think that
we Justices should properly take into account their views, as though we were engaged not in ascertaining
an objective law but in determining some kind of social consensus”); Webster, 492 U.S., at 535 (Scalia, J.,
concurring in part and concurring in the judgment) (referring to the Justices as “unelected and life-tenured
95
At the same time, this argument in favor of stealth overruling is refreshingly
realistic in that it understands that extra-judicial forces can influence judicial
interpretations. Many theories that require that the Constitution be held aloof from
popular opinion see an independent judiciary as the means for doing so. 381 The entire
problem of the “countermajoritarian difficulty,” which pervades much constitutional
theory, assumes that when Supreme Court justices judge, they are not susceptible to
popular influence, and that their word is final. 382 Those who decry judicial supremacy
and those who applaud it alike typically operate from the assumption that the Court can
and does have the last word, that the justices are able both to insulate themselves from
criticisms and ensure that their decrees are followed.
But stealth “overruling” cannot rest on this assumption of judicial supremacy and
insulation, for then it would not matter what the public knew or understood about the
Court’s decisions. If the justices felt that they were indeed impervious from public
challenge, they would have no need to obscure what they were doing to avoid publicity.
The case for stealth “overruling,” or at least the motivation for it, thus is quite cognizant
of the fact that the Court is and always has been accountable at one remove or another to
the popular will. There is little surprise in this. The justices understand better than most
judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we
might follow the law despite the popular will”).
381
See Alexander, Popular?, supra note ___, at 1637 (noting that judicial supremacy is inconsistent with
the most extreme conceptions of popular constitutionalism, and commenting that “If we were forced to
choose between dictatorship of the judiciary and mob rule, we would choose the former”); Carpenter,
Judicial Supremacy, supra note ___, at 425 (presenting as a virtue of judicial supremacy that the Court is
more likely than the President to reach principled but unpopular results); see also Friedman, Will of the
People, supra note ___, at 173 (discussing the interest among Gilded Age conservatives in judicial review
as a bulwark against popular agitation)
382
See Friedman, CMD V, supra note ___, at 157 (noting that judging has not been criticized as
countermajoritarian during periods when notions of judicial supremacy were weak, and political actors
regularly threatened the Supreme Court); see also Friedman, Dialogue and Judicial Review, supra note
___, at 586-90 (discussing how scholars since Alexander Bickel have treated the countermajoritarian
difficulty).
96
perhaps the extent to which their place rests ultimately in popular approval of their
decisions. 383 Thus, it is easy to see a preference for public deception over the risk of
public interference.
2.
The case against stealth overruling
While this argument “works,” in some sense, one wonders how eager the justices
themselves would be to grab hold of it. There is something that feels quite awkward
about it. As it happens, there are both a stronger and a weaker version of the argument
against. The strong version takes a very different view of constitutionalism, one that is
certainly more accurate descriptively and perhaps more appealing normatively. The
weak version rests in the possibility of judicial error.
At the least, it seems difficult to countenance failing to give some set of
persuasive reasons for what the Court is doing. After all, what if the Court is simply
misguided? The lesson of the 2006 spate of cases is that in some of them at least, no one
was convinced that the Court was doing what it said it was doing, let alone why. Even
those who countenance a lack of candor, rarely suggest that no persuasive reason-giving
need occur. 384
383
Chief Justice Rehnquist observed that “currents and tides of public opinion…lap at the courthouse
door,” since “judges go home at night and read the newspapers or watch the evening news on television;
they talk to their family and friends about current events.” Rehnquist, Public Opinion, supra note ___, at
768. See also Devins, Casey, supra note ___, at 1322 (noting that “Casey's support of limited abortion
rights reflected the political preferences of federal and state lawmakers as well as the American people”);
Devins, Majoritarian Rehnquist Court, supra note ___ (detailing the Rehnquist Court’s convergence with
public opinion); Friedman, Mediated, supra note ___, at 2606 (noting that “the wealth of existing evidence
suggests that most of the time judicial decisions fall within the range of acceptability that one might expect
of the agents of popular government”); Giles, Unraveling, supra note ___ (reporting evidence of a direct
linkage between Justices’ behavior and popular opinion); McGuire, Least Dangerous Branch, supra note
___, at 1019 (analyzing 50 years of Supreme Court decisions and finding “a substantial degree of
sensitivity to public opinion, even when the ideological composition of the Court is held constant”);
384
See supra notes ______ and accompanying text.
(Notes & Text currently on pg.77-78. Search “doubt the necessity or propriety of candor altogether” to find
corresponding text.)
97
Miranda is a shining example of the pitfalls of failing to offer the reasons for a
decision so that they can be subjected to scrutiny. It’s clear the justices don’t like
Miranda, but we don’t know exactly why. We did know why the Miranda dissenters
disliked the rule – and why the majority in that case preferred it nonetheless. They laid
bare their reasoning, which rested firmly in the costs and benefits of providing warnings
to criminal suspects. 385
Since then, though, the entire merits discussion has gone
underground. There is virtually no discussion of whether custodial interrogation might
prove problematic, or any recognition of how easy compliance with Miranda has proven,
let alone whether the costs of Miranda in lost convictions are real. Rather, as the tortured
opinions in Seibert and Patane make clear, the justices prefer to rely on bald
pronouncements about what the Fifth Amendment does or does not require, and
uncomfortable distinctions of prior precedents.
The problem, as Peter Smith points out in his discussion of legal fictions, is that in
cases such as these the justices’ very factual premises are going unexamined, when
daylight might show those premises to be simply false. 386 It is really a little difficult to
accept broad statements about how barring admission of a suspect’s statement in the
prosecution’s case in chief provides sufficient deterrence, when basic economic analysis
would suggest just the opposite. This is particularly the case when reading lower court
decisions serves to confirm what economics teaches.
385
See Miranda, 384 U.S. at 479-90 (acknowledging and rebutting opposing arguments, and observing that
“there… ha[s] been no marked detrimental effect on criminal law enforcement” in jurisdictions with
Miranda-like safeguards); id. at 514-20 (Harlan, J., dissenting) (giving policy considerations that counsel
against the rule).
386
See Smith, New Legal Fictions, supra note ___, at 1442 (defining a “new legal fiction” as a notion such
that “(1) it is offered as a factual, rather than a normative, supposition, and (2) social science research
demonstrates persuasively that it is false”); id. at 1489 (noting that “[i]n most cases involving new legal
fictions… the Court does not acknowledge that it is relying on a faulty factual premise,” thus making two
normative choices: “not only to advance the (unstated) goal but also to privilege it over the interest in
candor.”
98
The failure to discuss the underlying merits of police conduct is particularly
disappointing in light of the fact that Miranda now seems to supplant any meaningful
examination of the voluntariness of confessions. Miranda serves to obscure rather than
to highlight the very question about which courts should be concerned. The question the
Supreme Court should confront is whether interrogation practices some forty years after
Miranda warrant application of a rule designed to avoid coercion in police interrogation.
Perhaps (as one account would go) police forces have professionalized and in the vast
majority of cases suspects are treated in a perfectly acceptable fashion, one that properly
balances the needs of society and the rights of suspect. Or, perhaps police engage in
deception and apply pressure in ways that are troubling, including denying people
lawyers when they ask for them. True, no clear answer to this question may emerge;
indeed, there are likely to be serious debates about where the line properly is drawn. But
those debates are the right ones, and stealth “overruling” only obscures them.
A stronger argument against justifying stealth “overruling” as a means of
obscuring the Court’s work from public view rests in an opposing understanding of
constitutionalism, one that acknowledges and in many ways welcomes public
participation in constitutional meaning. This argument is descriptive and normative
both. 387 It rests on a more accurate understanding of how constitutionalism has in fact
operated throughout American history; and in a normative account of why this is a good
thing. One might reject the normative account, but it is hard to put aside the descriptive
accuracy of the claim.
387
It finds grounding in Barry Friedman, The Will of the People, supra note ___.
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The origins of this alternative understanding of constitutionalism actually predate
the more familiar idea of the aloof, obdurate constitution. 388 American constitutionalism
was built on the foundations of British common law constitutionalism. The “ancient
constitution” found its root not in one single document, but in seminal tracts such as
Magna Charta, common law decisions, and the longstanding customs and practices of the
British people. Constitutional meaning was forged in a tradition that stretched to “time
immemorial.” 389
The reigning assumption of early American constitutionalism was that adherence
to constitutional government would be secured by the people keeping a watchful eye on
their public servants. A key purpose of bills of rights, for example, was to make the
liberties of the people apparent. If officials violated those liberties, they could expect to
be brought to heel at the next election.
Over time the ideal of popular enforcement of a constitution gave way to more
formal mechanisms, most notably judicial review. It emerged early on that elected
officials were too all-too-eager to do the public’s bidding, at times in a manner flatly
contrary to constitutional guarantees. This is why bills of rights were criticized as
“parchment barriers.” As Madison was one of the first to recognize, the problem was the
people, not their governors. This realization fed explicit constitutional reforms such as
bicameral legislatures and independent judiciaries that remain with us today. And it was
388
See Kramer, The People Themselves, supra note ___, at 9-34 (discussing the notion of a customary
constitution); Reid, Constitutional History, supra note ___, at 65-70 (discussing the sources of rights in
British legal theory)
389
See Kramer, The People Themselves, supra note ___, at 12.
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one of the prominent reasons for the emergence of judicial review in the form we today
can recognize. 390
But even as judicial review evolved, so too did popular democracy.
As judicial
supremacy grew, the franchise expanded, almost in tandem. 391 The power of the popular
will remained an important check and influence upon judicial decisions.
And the
Supreme Court (as well as other courts) learned that they frustrated the popular way at
their peril.
The Supreme Court’s ultimate accountability to the popular will has, at least since
1937, led to a vibrant and ongoing dialogue about constitutional meaning. In many areas,
present-day understandings of the Constitution have been shaped by social movements.
This is true of the post-New Deal view of congressional power over the economy, of
abortion rights, and of gay rights, to name but three. This assuredly is not to say that the
Court follows immediate popular preferences; and less so, certainly, that it should. What
it does mean is that as the Court interprets the meaning of the Constitution, the public
necessarily engages with those interpretations.
Social movements form around
opposition to Court rulings. And through a complicated and at times ineffable process,
Supreme Court interpretations and public reactions influence one another until ultimately
the two come into line. 392 Inevitably, then, the constitution under which we live will be
390
See Friedman, Will of the People, supra note ___, at 24-25.
See Friedman, Dialogue and Judicial Review, supra note ___, at 620-25 (chronicling parallel expansion
of the franchise and rise of judicial supremacy).
392
Balkin, Understanding, supra note ___, at 1066 (coining the term “partisan entrenchment” to describe
the process by which political parties bring the Court into line with popular will); Klarman, Jim Crow to
Civil Rights, supra note ___, at 5-6 (noting that “the values of judges tend to reflect broader social mores”);
Post, Popular Constitutionalism, supra note ___, at 1041 (describing process of the Courts’ reaching
equilibrium with popular opinion); Post, Foreword, supra note ___, at 8 (discussing the “dialogic”
relationship between constitutional law and culture); Friedman, Will of the People, supra note ___, at 37476 (discussing alignment between the Court and public opinion).
391
101
one that reflects the values of the American people. Not immediate passing fancy, but
their long-standing and deeper values.
To the extent that this notion of constitutional change is troublesome, stealth
overruling makes some sense.
It allows the judges to control the meaning of the
Constitution, and dampens public awareness – and thus public reaction.
Because
constitutional change has proven inevitable, however, stealth “overruling” simple
insulates judges from broader popular pressures.
To the extent that the dialogic understanding of formulating constitutional
meaning has normative value, however, stealth overruling is profoundly problematic. Its
very purpose is to obscure constitutional interpretations of the Supreme Court, to lead the
people to believe one thing is the case, when in fact quite another is. Stealth overruling
suppresses public dialogue about constitutional meaning. 393 Returning to the Miranda
cases highlights just what a problem this sort of stealth overruling can be.
3.
The Miranda cases and stealth overruling
Although the public has greater awareness of Supreme Court rulings than some
commentators suppose, still that knowledge is extremely thin. Studies have shown that at
most two or three cases in a Term really permeate the public consciousness. 394 Which
those happen to be often turns on the vagaries of politics, and media coverage. For
393
See Roosevelt, Constitutional Calcification, supra note ___, at 1691 (“a Court that engages in
subterfuge rather than explaining itself denies the rest of us the opportunity to evaluate that judgment.”).
394
See Franklin, Media (finding that only a small fraction of Supreme Court decisions are likely to reach
the public consciousness); Hetherington, Issue Preferences, supra note ___, at 45-50 (analyzing newspaper
stories and finding that “even the elite media provide little information about recent Court outputs, focusing
instead on prominent past decisions”); Hoekstra, American Supreme Court, supra note ___, at 97 (reporting
that “most people may not know about most, or even many, of the rulings, but they do hear about those that
have some relevance to their community”).
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example, the Supreme Court’s decisions in the flag-burning cases looked soon to drift off
the public radar till George Bush (pere) made an issue out of them. 395
In light of what we now understand about public awareness regarding Supreme
Court decisionmaking, stealth overruling seems all too likely to serve the Court
majority’s anti-publicity purposes. The best one can hope is that the public follows the
headlines about the Court and its decisions. 396 Reading deep into a media story just is not
going to happen.
As the discussion of media attention to Seibert and Patane demonstrates, stealth
overruling successfully obscures what the Court is really about. Readers of the media
coverage of Seibert and Patane would have the impression that the Court was being
faithful to Miranda, and coming down hard on cops who make an end run around it. 397
What really has happened, however, is that the Court has deeply undermined Miranda,
and encouraged police to do the same.
Imagine, on the other hand, that the Court had overruled Miranda. It is hard to
see how that would have been anything other than Very Big News. Polls show broad
awareness of the decision, and broad support for it. 398 The term in which Seibert and
Patane were decided was a relatively quiet one. 399 Miranda’s overruling could have, in
395
See Friedman, Mediated, supra note ___, at 2623.
See, e.g., Readership Institute, Reader Behavior Scores, local daily newspapers 2008 13 (2008),
available at http://www.readership.org/reports.asp (finding 44% of adults spend no time or almost no time
reading the newspaper on an average weekday); id. at 17 (finding that when they read the newspaper,
average adults complete only 39% of it); Newspaper Association of America, Newspaper Web Sites (last
visited Dec. 22, 2009) (finding the average online reader spends 32 minutes per month on a newspaper web
site).
397
See supra notes ____ and accompanying text.
(Text & Notes on page 72; search “lead was something akin” to find).
398
See supra notes _____ and accompanying text.
(Text & notes currently on page 69; search “Gallup” to find).
399
See, e.g., Linda Greenhouse, The Year Rehnquist May Have Lost His Court, N.Y. Times, July 5, 2004,
at A1 (treating the Guantanamo detainee cases as the most high-profile of the term, and listing other
396
103
fact almost certainly would have, been the top story. Imagine further that in the 2006
Term the Court had explicitly overruled some substantial portion of the cases for which
commentators accused them of stealth overruling. It is entirely plausible to think the
Court would have become a hot story. The Democrats did well enough in the 2008
election without the Court as yet another item on the public agenda. 400 The Court would
undoubtedly have been subjected to substantial heat. 401 This may or may not have
affected the course of constitutional law, but the Court seemed to be trying to avoid just
this sort of political trouble.
More important, although it is impossible to say where a dialogue about
Miranda’s overruling would have taken the country as a policy matter, it is hard to
imagine it would have led to a result less favorable to criminal suspects than the current
state of affairs. 402 Indeed, the very conclusion one might draw from stealth overruling is
that the justices are making a similar calculation. Perhaps the Court would have been
driven to recant. Perhaps statutory versions of Miranda would have been adopted. 403
significant cases); Joan Biskupic, High court protected liberties by limiting presidential power, USA
Today, July 2, 2004, at 4A (noting that “public attention has focused on the terrorism disputes”).
400
See, e.g., Michael Cooper, A Blowout? No, but a Clear-Cut Win, for a Change, N.Y. Times, Nov. 7,
2008, at A26; Jim Tankersley, Big gains, shattered traditions; Obama's vote totals surprising not just in
their numbers, but also in where they came from, Chicago Trib., Nov. 6, 2008, at C11.
401
Indeed, there is some suggestion the lack of outright overruling in 2004 was due in part to the heated
presidential campaign. See, e.g., Charles Lane, Finality Seems to Elude High Court's Grasp; In Ruling on
Constitutional Controversies, the Justices Are Leaving Them Unsettled, Wash. Post, July 4, 2004, at A12
(characterizing the court as, “to a surprising degree,” proceeding “incrementally, even hesitantly” and
stating that “[i]t was as if the justices, at a time when the country is involved not only in war but also a
closely fought election campaign, had lost confidence in their ability to forecast the likely practical or
political impact of their actions, and reined themselves in accordingly.”).
402
See supra notes ____ and accompanying text.
(Notes & Text on page 93; search “Miranda effectively” to find)
403
For one possible statute, see Johnson, Statutory Replacement, supra note ____ (proposing a statutory
version of Miranda).
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Perhaps video-taping would have become more common. 404 It’s hard to imagine, though,
that we’d have ended up in the odd place that we are.
4.
The case of Casey
Stealth “overruling” is hardly unique to the Roberts Court. Indeed, the award for
stealth “overruling” may go to the plurality justices in Planned Parenthood v. Casey, who
seems to have outsmarted liberals intent on making abortion a national issue. In 1991,
with a critical presidential race approaching, pro-choice advocates forced the Casey case
on the Supreme Court. The thinking was that if Roe was going to be overruled, better
that should happen before the presidential election. If the ultimate demise of Roe was
foreordained, at least great political capital could be made of the fact. Then, the fate of
abortion rights themselves would be thrust into the limelight of politics. 405
The Rehnquist Court was well aware of the pressure it was under. The Chief
Justice sat on the Casey petition, trying to delay it, until a threat from Justice Blackmun
forced the issue onto the Court’s agenda. 406 At oral argument the justices tried repeatedly
to shift debate from the fate of Roe to the specific provisions at issue in the case. But
Kathryn Kolbert, representing the petitioners, insisted the only issue in the case was the
viability of Roe. 407
Its hand forced, the Court stealth overruled in brilliant fashion. The plurality’s
real decision was to drop Roe’s trimester framework, and adopt the much less rightsprotective “undue burden” test. But it claimed to “reaffirm” Roe, and wrapped itself in
its angst-ridden discussion of how the Court’s legitimacy would be undermined if Roe
404
See supra note ____ and accompanying text.
(Notes & Text on page 58 now; search “videotaping confessions” to find).
405
See Friedman, Will of the People, supra note ___, at 329.
406
See Lazarus, Closed Chambers, supra note ___, at 462-63.
407
See Lazarus, Closed Chambers, supra note ___, at 465.
105
were overruled. The media declared Roe saved, though from the perspective of abortion
rights that was hardly the case.
It’s easy enough to imagine the mesmerizing national debate that would have
taken place had the conservative Court overruled Roe. When the Court merely threatened
to do so in Webster v. Reproductive Health Services, the political landscape was altered
overnight.
Donations to pro-choice groups shot up dramatically.
Several midterm
elections saw the defeat of pro-life advocates. Huge marches were staged in Washington,
DC. Abortion became an issue in the presidential race. 408
But the dialogue after Casey was quite different, with the momentum resting
instead anti-abortion rights hands. The debate shifted to whether “partial birth abortion”
should be legal, a round won by anti-abortion rights advocates in legislative, judicial and
public domains.
The left now appears to be seriously considering abandoning
reproductive rights as a leading issue, realizing abortion is working against them in the
public mind.
Stealth “overruling” is a game-changer – or, more aptly, it is a way of changing
the law without changing the game. When the Court is candid about what it is doing in
major cases and areas of the law, there is a public dialogue and over time that dialogue
does influence the meaning of the Constitution. And so the justices appear to have
learned to do what they’d like sub silentio. The move is an effective one, but of dubious
integrity.
CONCLUSION
Stealth overruling is an elusive concept. The very nature of the common law
method makes fine indeed the line between the distinguishing of an existing precedent
408
See Friedman, Will of the People, supra note ___, at 328-29
106
and its overruling. Nonetheless, there is a line. Even if it possesses a sort of “know it
when you see it” sort of quality, the line is there and those following closely can perceive
when it has been crossed.
Yet, stealth “overruling” serves an instrumental purpose. It allows the justices to
alter the direction of constitutional law without being perceived as having done so. They
are aware of what is happening, as are those who follow the Court’s decisions closely.
But professional knowledge and public salience are two different things.
Stealth
“overruling” has proven an effective public relations ploy on the part of the Court
majority.
However, stealth “overruling” imposes its own costs. The least of these, though
certainly of substance, is that it confuses the law, eliminating the traditional virtues of
transparency and predictability. Somewhat more grave is the blow taken to the Court’s
long-term authority as officials and lower courts are taught to treat precedents casually
once given the wink from above. It is somewhat surprising the justices cannot see this
long-term threat to their authority.
Most seriously, stealth “overruling” obscures the path of constitutional law from
public view, allowing the Court to alter constitutional meaning without public
supervision. There is a theory by which this makes sense, one that rests deeply in judicial
supremacy, and recognizes that the justices are vulnerable to public reprobation. But this
theory is neither descriptively-accurate nor normatively-desirable. Although the Court
should not respond to every passing public fancy, ultimately the Constitution is the
people’s, and the people are its guardian. Stealth “overruling” raises the specter of the
107
countermajoritarian difficulty, a danger undercut by more dialogic understandings of
constitutional development.
Miranda – and Casey – underscore this. The public(within limits, one supposes)
supports Miranda, which is indeed embedded in the national culture. And the public,
within certain limits, supports abortion rights. Yet both of these are jeopardized by a
Court that is tunneling under them without admitting what it is doing. Perhaps Miranda
and Roe should be overruled. Certainly there are justices that believe this. But if that is
the case, then they should do that overtly, and allow a national discussion to begin.
108