6/27/00 1:15 p.m.
A Wrong Choice On Miranda
The Supreme Court fails to confess its past error.

By John O. McGinnis, professor, Yeshiva U.'s Cardozo School of Law

he Supreme Court yesterday reaffirmed the famous Miranda decision, and its manner in doing so is deeply disappointing — doubly so because it was written by Chief Justice William Rehnquist, usually no friend of judicial excess. In his opinion for the majority, the Chief Justice made plain that the Miranda warning must flow from the Constitution itself. Otherwise, it could not trump the congressional statute that mandated the admission of voluntary confessions. But the Chief Justice never even attempts to show how the rule in Miranda can be rooted in the Constitution.

The opinion's silence on this point is eloquent: The Fifth Amendment of the Constitution simply states that no one "should be compelled to be a witness against himself." In other words, confessions must be voluntary. But confessions can obviously be voluntary even in the absence of a warning. The Miranda warning in fact includes notice of the right to counsel — a matter that has nothing to do with the voluntariness of the confession. The basic dilemma for those who would justify Miranda is to infer the language of the warning from the command of the constitutional text. Without such a inference, the Miranda rule, however wise or foolish as a matter of policy, appears an act of judicial usurpation.

The Chief Justice rested his defense of Miranda not on reasoned analysis, but on the rock of precedent. He noted that Miranda had been decided many years ago and had become part of American culture. Thus, Miranda has achieved, if that is the right term, the status of Roe v. Wade. The majority of the court will not defend either decision on the merits, but simply entrenches each decision on the assertion that precedent should not be discarded. This rationale allows the Court to encroach on the territory of elected representatives without even displaying its title for doing so. Casey (reaffirming Roe) and Dickerson (affirming Miranda as a constitutionally mandated rule) are the equivalent of taking land by adverse possession. So long as the Court has been wrong for a sufficiently long period that its errors permeate our culture, it now claims entitlement to be wrong forever.

This is a kind of reasoning that should be deeply troubling to conservatives, because it represents a one-way ratchet in favor of judicial power. There will always be eras of judicial enthusiasm, when the proper roles of judges becomes subordinate to the felt necessity to right what are perceived as society's wrongs by the quickest road possible. A Court that stands ready to correct its errors permits later, more sober eras, like our own, to erase the excesses and disasters of periods like the 1960s. But a Court that simply defers to previous decisions rather than exercising its reasoning power anew provides no such check on the continuing consequences of our disordered past. The result, over time, will be a Court that marches ever further toward judicial usurpation, as one set of wrong decisions after another are launched by irresponsible eras and never called to account again.

Fortunately, there may be some practical future responses to the reaffirmation of Miranda. The majority opinion leaves open the possibility that law-enforcement regimes that do not include Miranda warnings may be constitutional if they achieve the objectives of those warnings. Thus, if a law-enforcement regime creates a structure which creates a prophylactic barrier to the possibility of any coerced confessions, it might be upheld. As technology progresses, the police may be able to keep a video record of all their movements and those of their suspects. If everything is on tape, voluntariness can be assessed with perfect accuracy and the Court's objections to a case-by-case determination of voluntariness-a process that was perfectly constitutional for over a hundred years before Miranda — might dissipate.

But whatever the future holds in practice, the decision today damages the fabric of our Constitution. Rather than confront the possibility of error, the Court has once again avoided serious reflection on whether it overstepped the bounds of law. Justices, like the rest of humanity, are not often inclined to confess past misdeeds. But the lack of confession and correction at the Court, as at less exalted levels of society, removes an important deterrent to future misconduct, making judicial activism more likely to flourish in the decades to come.