The court should have remained silent: why the court erred in deciding Dickerson v. United States.

• Author: Chemerinsky, Erwin

1. THE UNDERLYING ISSUE IN DICKERSON V. UNITED STATES: WAS THE CONSTITUTIONALITY OF [sections] 3501 PROPERLY BEFORE THE COURT?

   The Supreme Court's decision in Dickerson v. United States(1) will be most remembered for its emphatic reaffirmation of Miranda v. Arizona.(2) Chief Justice Rehnquist, writing for the majority in a seven to two decision in Dickerson, declared: "We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."(3)

   Dickerson also will be remembered, especially by students of constitutional law and the federal court system, for its importance in defining the relationship between Congress and the Supreme Court in the area of constitutional remedies. The issue before the Court in Dickerson was the constitutionality of a federal statute, 18 U.S.C. [sections] 3501, which sought to overrule Miranda v. Arizona. Adopted as part of the Omnibus Crime Control and Safe Streets Act of 1968, [sections] 3501 provided that confessions shall be admissible in federal court so long as they are voluntary.(4) The statute declares: "In any criminal prosecution brought by the United States or by the District of Columbia, a confession ... shall be admissible in evidence if it is voluntarily given."(5) The statute's goal, as the Court observed in Dickerson, was to overrule Miranda v. Arizona and restore the law to what it was before 1966.(6)

   In Dickerson, the Court held that Miranda v. Arizona is "constitutionally based"(7) and states a "constitutional rule."(8) Therefore, the Court held [sections] 3501 unconstitutional because, of course, "Congress may not legislatively supersede our decisions interpreting and applying the Constitution."(9) If the Court had ruled otherwise, Congress and the states would have had the authority to eliminate the requirement for Miranda warnings. More generally, if the Court had decided that Miranda was just "constitutional common law,"(10) then that might have opened the door for Congress to eliminate other judicially created remedies in constitutional cases. If Congress could overrule the Court's command that confessions be excluded from evidence if they were obtained without proper administration of Miranda warnings, then perhaps it could also overturn judicial orders in other cases, such as for busing in school desegregation litigation or for damages in suits against federal officers.

   Dickerson thus will be remembered both for its practical significance in requiring that the police and courts continue to follow Miranda and for its broader theoretical significance in limiting the ability of Congress to overturn such judicially created devices for protecting constitutional rights. Unfortunately, what seems surely to be forgotten about Dickerson is how the issue of the constitutionality of [sections] 3501 was raised at all. Neither party--not the prosecutor, the United States, nor the defendant--invoked [sections] 3501. Instead, it was presented to the United States Court of Appeals in Dickerson by a conservative public interest group in an amicus curiae brief and argued to the Supreme Court by an attorney for that group who was appointed by the Court. The only hint of this in the Supreme Court's decision is in a footnote in which Chief Justice Rehnquist states: "Because no party to the underlying litigation argued in favor of section 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below."(11) This simple statement fails to disclose that the United States Department of Justice, the prosecutor, made the conscious choice in the United States District Court, the United States Court of Appeals, and the Supreme Court, not to invoke [sections] 3501. The United States Court of Appeals for the Fourth Circuit stated in Dickerson:

   [T]he applicability of [sections] 3501 was not briefed by the Government on appeal. We note, however, that this was no simple oversight. The United States Department of Justice took the unusual step of actually prohibiting the U.S. Attorney's Office from briefing the issue. To be sure, this was not an isolated incident. Over the last several years, the Department of Justice has not only failed to invoke [sections] 3501, it has affirmatively impeded its enforcement.(12) Indeed, almost without exception, every Justice Department since 1968 has refused to invoke [sections] 3501 and has taken the position that [sections] 3501 is unconstitutional in that Congress impermissibly sought to overrule a Supreme Court decision that interpreted the Constitution.(13) Although federal prosecutors have an obvious desire to have confessions used as evidence against criminal defendants, for over thirty years the statute has not been used by Justice Department attorneys.(14)

   Nor was it invoked in the prosecution of Charles Thomas Dickerson. Dickerson was arrested and indicted for bank robbery.(15) Dickerson made incriminating statements to federal agents, but the United States District Court suppressed the confession on the grounds that Miranda warnings were not properly administered.(16) The United States Government appealed solely on the issue of whether there had been a violation of Miranda. In its brief to the Fourth Circuit, the Government declared: "[W]e are not making an argument based on section 3501 in this appeal."(17) The Washington Legal Foundation, a conservative public interest group, filed an amicus curiae brief in the Fourth Circuit urging the court to raise [sections] 3501 sua sponte.

   The Fourth Circuit accepted this invitation and gave the following explanation:

   Dickerson voluntarily confessed to participating in a series of armed bank robberies. Without his confession it is possible, if not probable, that he will be acquitted. Despite that fact, the Department of Justice, elevating politics over law, prohibited the U.S. Attorney's Office from arguing that Dickerson's confession is admissible under the mandate of [sections] 3501. Fortunately, we are a court of law and not politics. Thus, the Department of Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it.(18) The statement is remarkable in its assumption that the Justice Department's choice to refrain from invoking [sections] 3501 was based on a desire for political gain. There is no imaginable political benefit to the incumbent administration from not using [sections] 3501. The reality, of course, is that the prosecution of Dickerson, whether it led to a conviction or acquittal, would have no political significance whatsoever. He is one of countless individuals prosecuted by the United States every day for federal crimes. If the Fourth Circuit had not chosen his case as the vehicle for invoking [sections] 3501, the case would have attracted no attention. More importantly, today's politics obviously favor the Justice Department using [sections] 3501 and gaining convictions. The general public does not want criminals to get off on what it sees as "technicalities" and surely would prefer the government to use [sections] 3501 where necessary to gain the admission of confessions and ultimately convictions.

   The Fourth Circuit falsely attributed a political motive to the Justice Department to pave the way for it to consider [sections] 3501 sua sponte. In doing so, the Fourth Circuit obscured the Justice Department's choice to refrain from using [sections] 3501 because of a view that the statute is unconstitutional. Although the Justice Department wants convictions at least as much as the Fourth Circuit, for over thirty years it has refused to invoke the statute even in cases where it might have made the difference between the government winning or losing. By trivializing the Justice Department's refusal to invoke [sections] 3501 as a mere "political" choice not based on "law," the Fourth Circuit ignored an extremely important underlying issue: is it appropriate for a federal court, on its own, to invoke a federal law not pertaining to the court's jurisdiction, over the objections of the federal prosecutor?

   The United States Supreme Court simply assumed that the issue of the constitutionality of [sections] 3501 was properly before it. As mentioned above, it appointed Paul Cassell, the attorney for the conservative public interest group and a law professor who long has criticized Miranda, to brief and argue the case.(19) Not a single justice in Dickerson questioned whether it was appropriate for the federal courts to invoke [sections] 3501 when the federal prosecutors had expressly chosen not to do so.

   Nor is it likely in hindsight that there will be attention to how [sections] 3501 and its constitutionality was raised in Dickerson. Those who wanted to see Miranda reaffirmed, and who are thus happy with the Court's ruling, certainly have no reason to complain over the decision. Conservatives, who wanted Miranda overruled, are in no position to complain because conservative opponents of Miranda brought the issue to the Supreme Court. In Davis v. United States, in 1994, Justice Scalia urged in a concurring opinion that federal courts consider [sections] 3501 sua sponte in a future case.(20) A conservative public interest group and a conservative panel of the Fourth Circuit followed this suggestion and raised the constitutional issue decided in Dickerson. As much as conservatives such as Justice Scalia lament the Court's choice in Dickerson to reaffirm Miranda v. Arizona,(21) they cannot and surely will not complain that the Court reached the issue improperly.

   Thus, the story of how [sections] 3501 came to be considered in Dickerson at most will soon be a forgotten historical footnote to an important case about criminal procedure and the relationship between Congress and the Supreme Court. This, however, ignores the significant...