Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 13

U.S. Supreme Court in Washington, D.C. (Jonathan Ernst/Reuters)

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.”

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violates the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

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