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You Have the Right to Remain Silent

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Media For Gore

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Smart Cops Saying 'No'

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Clinton's Anti-Gun Two-Step

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Let My People Go: Elián and the Exodus

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Rapists Like GunControl

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Why You Yellow Bellied...

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Bush Courts Gay Republicans

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Elián: The Movie

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Will Gore Be Held Accountable?

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Turning on Greenspan

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Two Cheers for W.'s Environmental Message

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A Well Endowed Democracy

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An Unsettling Antitrust Case

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The Ph.D. with the Lamp

4/20/00 9:20 a.m.
You Have the Right to Remain Silent
But not about the erosion of the Constitution.

By John McGinnis, professor, Cardozo School of Law

n the Dickerson case, as with many Supreme Court cases, the oral argument provides no firm guidance as to the outcome, but it does tell us much about the sorry and perilous state of our constitutional jurisprudence. The press has often misleadingly described the issue in Dickerson as whether Miranda will be overruled. In reality the question is whether the Court will accept Congress’s standards for determining the voluntariness of confessions as a substitute for its own standards crafted in Miranda. Because the Court has never squarely held that the warning itself is compelled by the Constitution, Miranda may be understood as an interim common-law remedy that applies in the absence of legislative action.

Through section 3501, however, Congress has supplied the standard; so the only task of the Court is to determine whether it provides a sufficient vindication for the constitutional right at issue. The provision of the Fifth Amendment at issue is simple: No one "in any criminal case shall be compelled to be a witness against himself." The Constitution prohibits compulsion, but does not itself provide a code for police interrogation.

Given the simplicity of the command at issue, the initial press accounts of the hearing make depressing reading. According to these accounts, Stevens, Souter, Ginsburg, and Breyer all in various guises defended Miranda as "a hallmark" of American jurisprudence. In this approach they followed the Justice Department’s brief which labeled Miranda "transcendent" more than once. Thus, four justices may be willing to override Congress without rooting their decision carefully in the text of the Constitution.

Nevertheless, four justices do not make a majority, and the liberal justices’ badgering of Paul Cassell, the attorney arguing in favor of the statute, may suggest that they do not have the votes to win. From their questions, Rehnquist and Scalia clearly believed the statute was constitutional; and, on past evidence, Thomas is also likely to be sympathetic. Scalia, in particular, was at his professorial best, showing how the Court had used its power to shape evidentiary standards when the legislature did not act. He thus demonstrated to Kennedy and O’Connor that upholding the federal statute would not immediately leave the states with no effective standards for assessing the voluntariness of confessions.

The result, therefore, depends entirely on O’Connor and Kennedy. They did not tip their hands in the argument, but at least O’Connor’s questions suggested she might be looking for a way to uphold the statute. She analogized Dickerson to a recent case in which the Court accepted a state structure of criminal appellate rights as sufficient to vindicate the right to appeal that the Court has found in the Sixth Amendment.

On balance, the argument sustains grounds for guarded optimism about this particular case. But the argument also reminds us that in this area, as in federalism, affirmative action, and much of the rest of criminal procedure, any real hope for sound constitutional jurisprudence could disappear upon the death or retirement of any of five justices, should the appointing President be a Democrat.

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