Asking the right questions: how the courts honored the separation of powers by reconsidering Miranda.

AuthorDevins, Neal

INTRODUCTION

By putting an end to a thirty-five year campaign to nullify Miranda v. Arizona,(1) did the federal judiciary engage in inappropriate judicial activism or appropriate judicial restraint?

At first blush, the answer to this question seems simple, namely: the Miranda override litigation is an obvious, blatant example of judicial overreaching. In deciding whether Congress could statutorily nullify Miranda, the Fourth Circuit Court of Appeals and the Supreme Court both reached out to decide an issue that simply was not a part of the case. Neither party to the case, Dickerson v. United States,(2) called attention to a 1968 statute(3) providing that police need not issue Miranda warnings.(4) Instead, both sides agreed that Miranda was the appropriate benchmark in weighing the admissibility of a confession.(5) Consequently, by first looking to the 1968 statute, not Miranda, to sort out the admissibility of a confession, the Fourth Circuit committed plain error. After all, a central tenet of our adversarial system is that (save for jurisdictional issues) the parties to a case--not the judges deciding the case--raise the legal arguments.(6) For its part, the Supreme Court, by granting certiorari to decide the constitutionality of the 1968 statute, played fast and loose with the Constitution's "case or controversy" requirement.(7) With neither party willing to defend the statute,(8) the Justices--to preserve the semblance of an adversarial dispute--appointed counsel to argue the "government's side" of the case.(9)

This characterization of Dickerson is widely shared. In particular, depicting the Fourth Circuit as "`an assistant teeing up issues for the Supreme Court and scouting new enemies to conquer'"(10) and "the flagship of the federal judiciary's increasingly aggressive conservative wing,"(11) academics and journalists alike have savaged the appellate court for sua sponte considering the 1968 statute.(12) Complaining that the Fourth Circuit was animated by a desire to undo Miranda, critics deemed the decision "a heavy dose of conservative judicial activism"(13) and "the most surprising and ill-considered instance of `judicial activism' in recent memory."(14) In reversing the Fourth Circuit, the Supreme Court too has been criticized for using Dickerson as a vehicle to advance its ideological preferences. By declaring that Congress cannot overturn Court-created constitutional norms,(15) the Court's reaffirmation of Miranda has been portrayed as part and parcel of a Rehnquist Court campaign to limit congressional power. For example, commenting that "[t]here might well have been a period, sometime in the last three decades, when the Court would have overturned Miranda," The New York Times's Linda Greenhouse argues that "timing" explained the Court's decision: the fact that "the [C]ourt's interest in protecting its constitutional turf against congressional incursions was at a peak unmatched in recent years."(16)

In the pages that follow, I will take issue with this prevailing wisdom. Pointing to the judiciary's Article III duty to decide cases according to the law, I will argue that the Fourth Circuit was correct in paying attention to Congress's mandate that the 1968 statute, not Miranda, set out the "law" governing the admissibility of confessions.(17) Otherwise, litigants could effectively direct courts to decide cases according to their policy preferences, not the law. At the same time, the Clinton administration was not obligated to defend the constitutionality of the 1968 statute. The executive's Article II power to interpret the Constitution certainly extends to the Clinton Justice Department's decision to argue that the 1968 statute was unconstitutional but that Dickerson's confession was admissible under Miranda. Faced with a real dispute over the confession's admissibility but unable to direct the government to defend the 1968 statute, the Supreme Court was right in appointing counsel to defend the 1968 statute.

None of this is to say that ideology did not animate either the Fourth Circuit or the Supreme Court.(18) It is to say, however, that core separation of powers principles support the decisions both to consider the 1968 statute and to appoint outside counsel to defend the statute's constitutionality. In other words, while the line separating judicial activism from judicial restraint may be murky, the responsibility for each branch of government to independently interpret the law is clear.

  1. PRELIMINARIES

    In our tripartite system of government, a system of checks and balances, each branch is empowered to independently interpret the Constitution and, in so doing, to serve as a bulwark against the aggrandizement of too much power in any other branch. Furthermore, each branch possesses core powers--powers that cannot be delegated to another branch. Consider the relationship of the judiciary to the executive. On the one hand, since the "judicial power of the United States" is vested in federal courts,(19) Congress could not transfer this power to executive agencies. "That would be to sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our system...."(20) At the same time, the judiciary must respect the executive's power to enforce the law. For example, the executive possesses prosecutorial discretion: the power to launch prosecutions, introduce evidence, and the like. As such, it would be impermissible for a federal court to assume the role of prosecutor by, say, introducing into evidence a confession that the executive deemed inadmissible.

    What then of the Dickerson litigation? Here, the executive introduced into evidence a confession that it deemed admissible under Miranda, the standard it employs in assessing confessions.(21) And while the criminal defendant, Charles Dickerson, thought the confession should be suppressed, Dickerson agreed with the government that Miranda was the governing rule of law.(22) By applying a different rule of law than the one subscribed to by both the government and Dickerson, the appeals court put its desire to "say what the law is" ahead of the executive's desire to define criminal prosecutions.

    How can I say that this decision is grounded in the separation of powers, not a usurpation of prosecutorial discretion--a core executive power?(23) More fundamentally, in the absence of a concrete dispute over the appropriate legal standard, how can I say that the separation of powers requires federal courts to sua sponte raise the 1968 statute?

    Let me begin with a confession. When I began thinking about this project, my first impulse was to write a paper condemning conservatives for engaging in the same type of activism that conservatives have long accused liberal judges of, that is, reaching out to decide cases to make law, not resolve concrete adversarial disputes. Specifically, in campaigning against "judicial activism," Ronald Reagan and other conservatives bemoaned "a weakening of the court's resolve to abide by the case or controversy requirement."(24) Indeed, Reagan's first Attorney General, William French Smith, "pledged on taking office ... that cases should not be adjudicated where the party bringing the case had only a remote connection with the issues; where the underlying dispute was not `ripe' ... and where the matter was properly resolved by the political branches, Congress or the executive."(25) Accordingly, for Smith and other conservatives, the separation of powers demands that courts should only review those issues that are truly in controversy and therefore represented by vigorous advocacy.(26)

    On the surface, the Miranda override litigation appears to be precisely the type of case that Smith had in mind. With no adversarial dispute on the governing substantive legal rule, the question of whether prosecutors should utilize the 1968 statute seemed a political matter best resolved by Congress and the executive, not the courts. To determine whether Congress had overruled Miranda, a court (or so I thought) would have to eschew this "dispute resolution" model in favor of the so-called "public values" model of adjudication.(27) Under the public values model, "the function of the judge ... is not to resolve disputes, but to give the proper meaning to our public values."(28) Consequently, concrete adverseness, while perhaps necessary to commence litigation, "becomes unimportant, whatever the stage of litigation, since the primary goal is to resolve the issue, not to settle a dispute between parties."(29) In Dickerson, the fact that the government and Dickerson disagreed over the admissibility of the confession was more than sufficient adversiveness to support judicial resolution of any and all related questions.

    At first blush, the Dickerson litigation seemed like a textbook example of the profound difference between the "public values" and "dispute resolution" models. For this very reason, a project calling attention to the willingness of conservatives, both judges and interest groups like the Washington Legal Foundation, to compromise their views on the judicial role in order to advance their policy preferences seemed worth doing. It would highlight the difficulty of placing something as abstract as a vision of the separation of powers ahead of something as concrete as desired policy outcomes.(30)

    The longer I researched and thought about this issue, however, the more I came to doubt my original impulse. More to the point, as I will now argue, the sua sponte raising of the 1968 statute and the appointment of amicus curiae to defend the statute's constitutionality is consistent with the "dispute resolution" model of litigation. At its core, the "dispute resolution" model calls upon courts to see Article III as a limited grant of jurisdictional authority.(31) Consequently, in order to respect the primacy of elected government decisionmaking, federal courts must...

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