The majority opinion in Dickerson v. United States, 530 U.S. 428 (2000), was written by Chief Justice Rehnquist (the author of the Quarles decision). The opinion states its hold succinctly at the outset: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”
Note that the opinion does not say that Miranda was a correct constitutional decision. On the contrary, the Court expressly notes that its holding is independent of “[w]hether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance.” This is not surprising—we have already seen that Justice Rehnquist’s opinion in Quarles expressed considerable skepticism about Miranda.
The Court’s analysis begins with the proposition that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.” This is a strange formulation. The justification for judicial review, as set forth in Marbury, is that the Court has the authority and duty to determine whether a federal statute (presented in a case or controversy) complies with the Constitution. In making this determination the Court will consider and generally adhere to the holdings and reasoning of its precedents, but this is different from claiming that Congress is forbidden from “legislatively supersed[ing]” a precedent that purports to interpret or apply the Constitution.
The distinction may be seen by reference to Hamilton’s observation, in Federalist No. 78, that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” Thus when the Court applies its precedents, it is (or should be) applying the judgment or reasoning of those cases to the case before it. If the reasoning of precedent controls the case at hand, then it may result in striking down a federal statute. But the assertion that Congress may not “legislatively supersede” a precedent suggests that Congress is required not merely to comply with the Constitution (the interpretation of which may be informed by judicial precedent), but is also required to comply with Supreme Court precedent as a declaration of judicial policy, ie, an act of will not merely judgment.
Of course, as is often observed (for example by Justice Sotamayor), the exercise of judgment may in effect make policy and may be influenced by the policy preferences of the judges. This, however, is a byproduct of the unfortunate fact that laws cannot interpret, apply and enforce themselves, and therefore require human beings to do it for them. It is a bug, not a feature, of the judicial system.
The distinction between precedent as judgment and precedent as policy is often difficult to detect, but the unusual nature of the Miranda decision makes it apparent. If the Miranda rule were formulated as a judgment, it would go something like this: “absent warnings or some other special safeguards, admission of a custodial confession violates the Fifth Amendment.” As the Dickerson dissent (Justice Scalia, joined by Justice Thomas) notes, this was the fairest reading of Miranda at the time that the initial decision was rendered. Subsequent decisions, however, preclude this reading of Miranda. Those decisions allow unwarned, but voluntary, custodial confessions to be admitted in the prosecution’s case in chief under some circumstances (Quarles), or allow them to be used for impeachment (
The Dickerson majority, while conceding that there “is language in some of our opinions that supports the view” of Miranda as a non-constitutional decision, concluded that Miranda’s constitutional nature was demonstrated by the fact that the Court had consistently applied its rule to the states. Since the Court lacks supervisory authority over the states, the majority reasoned, this necessarily means that the Miranda rule must be one of constitutional dimension.
Note that the Court isn’t saying that section 3501 is invalid because it is inconsistent with the Constitution, or inconsistent with the Constitution as interpreted by Miranda, or even inconsistent with Miranda’s reasoning. Instead, section 3501 is invalid because holding it valid would imply that Miranda is invalid and the Court is unwilling to consider, under stare decisis, whether Miranda is in fact valid. The Court has traveled a ways from the traditional notion that congressional enactments are entitled to a presumption of constitutionality.
At the end of the day, the most plausible interpretation of Miranda seems to be that it was based on the assertion of a judicial authority to create prophylactic rules, not themselves required by the Constitution, in order to protect constitutional rights. The Dickerson dissent points out that this interpretation was urged by both Dickerson and the government, and suggests that the fact that the majority does not mention it means that they, like the dissenters, reject the existence of any such authority. However, the majority appears to be applying the doctrine of stare decisis to Miranda’s result, not its reasoning. Thus, it may be that Miranda now stands only for the proposition that the Court has created a specific set of prophylactic rules to govern custodial confessions in most circumstances, not that the Court actually has the constitutional power to do so. If this in fact is the proper interpretation of Dickerson, it is understandable that the Court may not have wanted to say so explicitly.
The Dickerson Court echoes Quarles in describing Miranda as essentially an exercise in balancing the costs and benefits of requiring warnings prior to a custodial interrogation. On the cost side, the Court acknowledges the “disadvantage of the Miranda rule . . . that statements which may be by no means involuntary . . . may nonetheless be excluded and a guilty defendant go free as a result.” On the benefit side, it notes the Miranda Court found that the traditional totality of the circumstances test (ie, the approach endorsed by section 3501) created an “unacceptably great” risk of “overlooking an involuntary custodial confession.” Moreover, the Dickerson Courtconcluded that the Miranda rule had shown itself to be easier for both law enforcement and the courts to apply than section 3501.
This type of cost-benefit analysis would seem to be a quintessential legislative task, but the Dickerson majority evidently felt that it was under no obligation to consider, much less defer to, the factual findings and judgments made by Congress in enacting section 3501. In my next (and final) post on this subject, I will consider the implications of Dickerson’s approach for a potential statute expanding and defining the public safety exception for terrorist interrogations.