Time to Overrule Miranda?

In an earlier entry, “Democracy Dies in Judicial Imperialism,” I noted the similarity between Roe v. Wade and Miranda v. Arizona. In each case, the Court treated the liberal elite’s view of law as if it were part of the Constitution, thus to insulate it from any input from that pesky hoi polloi sometimes known as “voters.”

Roe and Miranda are probably the two most important examples of the sort of obey-your-betters judicial imperialism I was talking about. Roe went down three weeks ago. In this entry, I ask whether it’s time for Miranda to follow it into history’s dustbin. To avoid any suspense, the short answer is yes — indeed it’s past time — but I have my doubts that this is going to happen any time soon, even with a Supreme Court, like this one, that takes the Constitution seriously, both for what it says and what it refrains from saying. I’ll explain momentarily why I think Miranda will be with us for a while despite a more disciplined Court.

First, let me give a short refresher course on Miranda. I’ll borrow from what I wrote before.

The Constitution has a short, simple rule about confessions. The Fifth Amendment provides that person cannot be compelled to be a witness against himself. If his custodial statement is involuntary, the government can’t use it against him. End of story.

So how did we get from there to the Miranda-manufactured litany of detailed warnings — that the suspect must be told that he can remain silent, anything he says can be used against him, he’s entitled to have a lawyer present with him during questioning, and if he wants a lawyer but can’t afford one, one will be provided for him?

The question in particular is what part of the Constitution specifies those warnings or says, a la’ Miranda, that without them, the suspect’s statement is automatically presumed to be compelled and thus inadmissible?

The answer is none. It doesn’t exist. And if a point be made of it, it’s absurd. If I, a lawyer and law professor for 40-odd years, get arrested tomorrow for being an international jewel thief, should my statements automatically be presumed compelled and inadmissible if I don’t get warnings I’ve been writing about for decades?

So how did the requirement of Miranda warnings find its way under the constitutional tent? Easy. It’s because the Warren Court thought police interrogations in the 1960’s were too rough and callous and a More Refined View — theirs — was needed. So they stamped, “Made in Constitutionville” on it and that was that.

Essentially identical reasoning was how we got Roe: Although the supposed right to abortion appears nowhere in the Constitution, the Roe majority purported to see it there by employing a judicial fancy dance. Noting its own earlier decisions claiming to find a similar (and similarly invisible) general right to privacy in the Constitution, the Court not only extrapolated to a constitutional right to abortion, but then necessarily, if awkwardly, outlined the contours of that “right” using the “standard” of viability — said “standard” not only being absent from the Constitution but subject to future change-without-notice through the march of science. From there it was off to the races, with supposedly constitutional lines being drawn by trimesters. No one even bothered to ask where in the Constitution that was.

We now have a Supreme Court majority that’s repudiated that sort of made-up reasoning. It adheres to the Constitution’s text, and is modest enough to leave to normal electoral processes how and to what extent abortion is to be regulated.

Why then should this Court not reconsider Roe’s conceptual analog, Miranda, and leave to elected officials the question of how police interrogations should be conducted?

That’s an especially interesting question because of two Miranda-related cases, one called Dickerson v. United States from 2000, and one decided just two days before Dobbs called Vega v. Tekoh. In Dickerson, the Court effectively reaffirmed Miranda, but with a devastating dissent by Justice Scalia and joined by Justice Thomas. Dickerson effectively invalidated a statute, 18 USC 3501, written by Congress two years after Miranda and intended to limit Miranda’s damage. Section 3501 reinstated the Constitution’s voluntariness test, although noting that whether warnings had been given would ordinarily be an important part of the judge’s decision whether the suspect’s statement was, in fact, voluntary.

The Dickerson majority held, however, that Section 3501 was defective because Miranda’s warning requirement was a “constitutional rule,” at least in the sense that it had “constitutional footings” and was designed to help secure Fifth Amendment rights. Very conspicuously, however, the majority did not hold that Miranda warnings are a constitutional requirement, or that they are part of the Fifth Amendment. As Justice Scalia acidly pointed out, absent such a holding, the Court had no business invalidating an act of Congress. If the Constitution itself does not forbid doing X, the Court cannot disallow Congress from authorizing X. Whether X (e.g., giving warnings to suspects) is a good idea, or would Make For A Better World, is not the Court’s business. Those are judgments the Constitution entrusts to the political process.

But Scalia and Thomas were in the minority, so that’s where things stayed — until two days before Dobbs, when the Court, also and tellingly per Justice Alito, seemed to put Dickerson on the thinnest of ice. The question in Vega was whether an unwarned defendant could sue the police, and obtain money damages, for interrogating him without following Miranda’s litany. The defendant brought his action under a federal statute, Section 1983, that allows citizens to sue police for violating their constitutional rights.

The Ninth Circuit Court of Appeals allowed the suit, but the Supreme Court reversed, holding that — ready now? — a defendant does not have a constitutional right to Miranda warnings. This is because such warnings are nowhere set forth in the Fifth Amendment and thus simply are not a component of the Constitution. And this is true regardless of how much they may be thought to have constitutional “footings,” whatever that means, or to be useful as prophylactic measures generally in aid Fifth Amendment rights.

So this appears to be the landscape: Dickerson did for Miranda what Casey did for Roe — that is, it ratified a judicial activist view of law that the present Court has courageously and rightly repudiated. Now that this same Court has used Vega to push aside Miranda’s fig leaf, Dickerson, can Miranda itself be far behind?

Conceptually, the answer is no. Miranda’s breezy inflation of the Fifth Amendment, and still more its rump creation of specific warnings a la’ Earl Warren’s police manual, are at least as obviously made up as anything that was going on in Roe.

I suspect, however, that the practical world gives us a different answer. The electorate has accepted Miranda in a way it never accepted Roe. Indeed, for by far the most part, the police have accepted it as well. As Justice Breyer observed in questioning during the oral argument in Dickerson (which I attended), millions of people have seen Miranda warnings on cop shows on TV! And there’s this too: Having taken down one of the great liberal icons of the Warren Court’s way of doing business, the present Court might now want to take a breather.

And I wouldn’t blame them. On the other hand, as was true with my role in Dickerson, and with apologies to the Terminator, I’ll be back.