The paths not taken: the Supreme Court's failures in Dickerson.

• Author: Cassell, Paul G.

"Where's the rest of the opinion?" That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.

Just six months earlier, the Court had appointed me to defend my victory in the Fourth Circuit, where I had persuaded that court to hold that 18 U.S.C. [sections] 3501 validly replaced the "prophylactic" Miranda requirements as the standard for the admissibility of confessions in federal court.(1) My appointment stemmed from the Justice Department's virtually unprecedented decision to align itself with the criminal defendant it was prosecuting in arguing against admitting his confession. The Department and Dickerson filed briefs urging reversal of the Fourth Circuit, supported by amicus briefs from the ACLU and several other civil rights organizations. I responded with a brief defending the Fourth Circuit's decision, supported by amicus briefs from the United States House of Representatives, leading Senators, seventeen states, and many of the nation's law enforcement officials, prosecutors, and victims' organizations. At oral argument in April, an active Court(2) wrestled with the contending positions. Meanwhile, the press and public awaited what many projected would be, regardless of the outcome, a landmark ruling.

Yet the case ended with a whimper, rather than a bang. On June 26, 2000, the Court announced it had reversed the decision below. The rationale for the reversal was only briefly sketched out. The entire majority opinion spans just a few pages (about eight in West's Supreme Court Reporter).(3) Only about half of those pages address the substantive constitutional issues.(4) The opinion briefly concludes that Miranda announced a "constitutional rule," had "constitutional underpinnings," and was "constitutionally based."(5) Surprisingly, at no point does the majority explicate precisely what this means. Justice Scalia's dissent highlights a critical omission in the majority opinion:

clearly: "We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States." It cannot say that, because a majority of the Court does not believe it.(6) One would think this a sufficiently important issue for the majority to respond to it -- either to affirm or deny the claim. Yet the majority did not trouble itself to answer.

The description of Miranda as a "constitutional rule" was sufficient to achieve the Court's apparent twin aims: striking down [sections] 3501 while leaving in place its various decisions crafting exceptions to Miranda.(7) But this result-oriented "success" came at the great cost of any pretense of consistency in the Court's doctrine. For example, Dickerson's assertion that Miranda created a "constitutional" rule contradicts numerous clear statements in earlier opinions. Surprisingly, these statements can be traced to Chief Justice Rehnquist, the author of the Dickerson opinion. Although Miranda itself contains constitutional language, then-Justice Rehnquist had written as early as 1974 in Michigan v. Tuckers(8) that Miranda's safeguards were "not themselves rights protected by the Constitution...."(9) From this premise, the Court allowed derivative evidence from a non-Mirandized statement to be used against a defendant because "the police conduct at issue here did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards" of Miranda.(10) Building on Tucker, in a series of cases spanning nearly three decades, the Court repeated the characterization of Miranda rules as "prophylactic" and relied on that rationale to limit the reach of Miranda.(11) At the same time, numerous federal courts of appeals reaching the issue had understood these statements to mean that Miranda rights were not constitutional in character.(12) Indeed, no less than the preeminent academic defender of Miranda -- Yale Kamisar -- had also seemingly acknowledged that, under prevailing doctrine, Miranda rights were not constitutionally required.(13)

This issue of the Court's "deconstitutionalization" of Miranda lies at the heart of the question presented in Dickerson. Yet, by my count, the majority opinion devotes only three substantive sentences to explaining why the Court's own, repeated statements should not be taken at face value. The majority acknowledges that "language" in some of its earlier opinions supports the view that Miranda rights are not constitutionally required. But, the majority says, these cases prove not that Miranda is not a constitutional rule, but only that "no constitutional rule is immutable."(14) Instead, asserts the majority, such exceptions are a "normal part of constitutional law."(15) Chief Justice Rehnquist does not pause to offer any explanation why then that language had been used in more than a half-dozen Supreme Court opinions on various Miranda issues.

The majority's cursory treatment of this central issue leaves Miranda doctrine incoherent. As others in this Symposium have pointed out,(16) there is no rationale for numerous results over the last twenty-five years. Why can the "fruits" of Miranda violations be used against a defendant? The traditional rule excludes fruits of, for example, unconstitutional searches.(17) In Oregon v. Elstad, the Court said very specifically that the reason for not following the Fourth Amendment rule in the Miranda context was that "a simple failure to administer Miranda warnings is not in itself a violation of the Fifth Amendment."(18) The majority in Dickerson viewed these statements not as "prov[ing] that Miranda is a nonconstitutional decision" but rather that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment."(19) Again, in its haste to dispose of the case, the Court did not tarry to explain the difference.(20) Similarly, in New York v. Quarles, the Court carved out a "public safety" exception to Miranda. The Fifth Amendment admits of no such public safety exception; the police cannot coerce an involuntary statement from a suspect and use it against him even if there are strong public safety reasons for doing so. The rationale Quarles gave, however, was that the Miranda rules were nonconstitutional rules subject to modification by the Court.(21) Dickerson hazards no attempt at explaining Quarles. In short, as Justice Scalia's dissent cogently argues, the Court in Dickerson behaved like "some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."(22) Or, as Akhil Amar has written, Dickerson reads like little more than the pronouncement: "The Great and Powerful Oz Has Spoken!"(23)

While other authors in this Symposium have discussed aspects of this doctrinal incoherence at some length,(24) the point I pursue here is whether this doctrinal incoherence was necessary. Perhaps the Court simply had no choice in the face of irreconcilable lines of cases. My thesis is that Dickerson could have been written coherently -- that the Court could have crafted other resolutions that would have allowed it to harmonize its doctrine far more effectively than the skimpy, jerrybuilt opinion the Court announced.

Part I describes a different path the Court could have taken to reconcile both its decisions describing Miranda as a sub-constitutional rule and those applying Miranda to the states. The Court could have treated Miranda as a form of constitutional common law, an interim court-created remedy for the enforcement of Fifth Amendment rights. That path would have been more consistent with Dickerson's emphasis on respect for precedent and would have effectively reconciled all of the Miranda cases.

Part II articulates still another path the Court could have followed to sustain [sections] 3501. The Court could have concluded that [sections] 3501, bolstered by improved tort remedies and other post-Miranda innovations in the law, provided a viable substitute to Miranda.

Part III lays out yet another path available to the Court for sustaining [sections] 3501 -- and harmonizing its decisions. This section explains how the Court's assertion of its power to promulgate Miranda conflicted with its more recent decision in City of Boerne v. Flores.(25) Boerne regulated congressional enforcement of constitutional rights, adding a "congruence and proportionality" requirement to any enforcement scheme. Applying Boerne to judicial enforcement of Fifth Amendment rights -- that is, to Miranda -- reveals that Miranda's exclusionary rule lacks "congruence and proportionality" to the underlying Fifth Amendment. The Court could have solved these problems by viewing Miranda as creating a presumption of involuntariness that could be rebutted by the prosecution.

Part IV addresses one last conflict between Dickerson and settled doctrine. In Dickerson, the Court gives as a ground for not overruling Miranda the lack of any significant harm to law enforcement. But Congress has reached precisely the opposite conclusion. In numerous other cases involving disputed factual questions, the Court has given deference to congressional findings. Dickerson should have followed these other decisions in evaluating whether to modify Miranda to uphold [sections] 3501.

Part V concludes with an exploration of how Dickerson might have encouraged Congress to adopt alternatives to Miranda -- alternatives like videotaping of police interrogation -- that might have offered a way of better protecting suspects' rights during questioning and society's interest in obtaining voluntary...