How sharper than a serpent's tooth was conservatives' pain when Justice Kennedy, occupant of the Robert Bork seat on the Supreme Court, wrote the opinion in a 6-2 ruling last week that widened the right of criminal suspects to counsel.
Conservatives' only consolation was a characteristically stinging dissent from Justice Scalia (joined by Chief Justice Rehnquist). But even this showed how completely the 1966 Miranda decision itself, long a target of conservative criticism, has become constitutionally uncontroversial.
In 1986 Robert Minnick and another prisoner escaped from a Mississippi jail, broke into a mobile home seeking guns, and killed the owner and a friend. Minnick was arrested in San Diego and interrogated on a Friday by FBI agents, who advised him of his Miranda rights to remain silent and have a lawyer. (He already knew; he is an experienced criminal.) On Monday, after several weekend talks with his lawyer, he was told to meet with a Mississippi deputy sheriff. He did, without his lawyer present, and confessed his part in the killings, for which he was sentenced to death.
Now the court has overturned his conviction, arguing that the Miranda-derived rules governing Fifth Amendment protection of the right against self-incrimination should include this wrinkle: Once a suspect invokes his right to an attorney, police cannot initiate questioning of him when no lawyer is present, even if the suspect, as in Minnick's case, does not ask for his lawyer to be present.
Kennedy, joined by White, Marshall, Blackmun, Stevens and O'Connor, says that Miranda, as elaborated by a 1988 ruling, means that once a suspect has invoked a right to have a counsel "made available," he cannot be said to have waived that right just because he responds to further police-initiated interrogation. Kennedy says this additional "specificity" in post-Miranda rules to prevent coerced confessions will benefit not only suspects but the state, too, by sparing courts the need to make many "difficult determinations of voluntariness" concerning confessions.
Scalia is exasperated ("a veritable fairyland castle of imagined constitutional restriction on law enforcement"), but not, at least not here, with Miranda itself. Today's argument, although not trivial, concerns the margin of the Miranda procedures.
Fifth Amendment protections are central to our accusatorial system of criminal justice, and Miranda is a realistic response to the long history of"Voluntary, truthful confessions serve society." coercive interrogation. But this portion of the Bill of Rights has become a dark and bloody ground of contention, because it is an intersection of two kinds of conflicts: conflicts of constitutional convictions and cultural passions.
The Warren court's elaboration of criminal suspects' rights (which no subsequent court has substantially shrunk) coincided with, and arguably contributed to, an era of increasing crime. But the principal explanations of that increase are demographic (an unusually large number of young men ages 15 to 24) and cultural (sentimental solicitude for criminals as victims of a sick society's "root causes" of bad behavior).
There is scant evidence that Miranda rules have significantly impeded law enforcement, and much evidence that they have helped produce more professional policing. However, Scalia discerns a perverse idea within the court's fastidious new filigree on Miranda rules, the first consequence of which has been to swing wide the door of a death-row cell.
He says last week's ruling, preventing police from initiating even non-coercive conversations that result in suspects waiving Miranda rights and confessing, is not mandated by any reasonable reading of constitutional proscriptions of compelled confessions.
Worse, the court has gone beyond concern for possibly innocent suspects who do not know their rights. The court's decision serves a nutty notion of "fairness." It protects dull-witted and guilty suspects from the "mistake" of making imprudent and unnecessary confessions that more clever guilty suspects would avoid.
It is, says Scalia, folly to regard it as a regrettable blunder when a guilty suspect is induced or persuaded -- not coerced -- to confess. Protecting suspects from doing this is not only beyond the court's Fifth Amendment authority, it is also corrosive of the criminal justice system. It embeds in law the notion that a truthful and uncoerced confession is a tactical mistake in some kind of trivial game.
Voluntary truthful confessions serve society by delivering justice and serve guilty individuals by facilitating rehabilitation. That is why, at sentencing, confession is regarded as a mitigating factor.
"We should, then," says Scalia, "rejoice at an honest confession, rather than pity the 'poor fool' who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it. To design our laws on premises contrary to these is to abandon belief in either personal responsibility or the moral claim of just government to obedience."
Scalia's dissent resonates sound conservatism. But 10 years after the election of Ronald Reagan, conservatism was not supposed to be relegated to dissents.