Bench Memos

NRO’s home for judicial news and analysis.

This Week in Liberal Judicial Activism—Week of March 12


Mar. 13     1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape.  His interrogation by police yields a written confession.  His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted).  It therefore vacates Miranda’s conviction.  In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.”  Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given.  In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute.  As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic”.  Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”   


Mar. 15     1933—Ruth Joan Bader is born in Brooklyn, New York.  At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero:  “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

1990—Florida chief justice Rosemary Barkett’s entire dissent from the denial of a petition for postconviction relief (in White v. State) is one conclusory sentence:  “I cannot concur in the majority’s conclusion that appellant received a fair trial with effective assistance of counsel.”  Nominated by President Clinton to the Eleventh Circuit in 1993, Barkett states at her confirmation hearing that she was too busy to provide any hint of her reasons.


Mar. 16     2006—In yet another in the seemingly ceaseless series of rearguard efforts to compel non-members to pay to support the political activities of unions, the Washington supreme court rules 6-3 that a state statute that requires non-members to “opt in” if they want to pay to support the union’s political activities (rather than to “opt out” if they don’t) somehow violates the union’s First Amendment rights.  That ruling is now under review by the U.S. Supreme Court, with a decision due by the end of June 2007.


Mar. 17     1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade.  In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue.  In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses:  “The selection of contingents to make a parade is entitled to [First Amendment] protection.”


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism


Subscribe to National Review