Over the decades, these two judge-made rules have unquestionably cost thousands of lives. When you let violent criminals go, predictably, more people get hurt and more people die. Given the soaring crime rates that Miranda ushered in, Ronald Reagan’s great attorney general and originalist legal scholar Ed Meese famously said that if he could overturn one case and one case only, it would be Miranda v. Arizona.
Such was the public outcry against Miranda that, just two years later, Congress overturned it. You probably didn’t know that either. But, in 1968, Congress passed 18 U.S.C. 3501, which on its face overturns Miranda. The statute was signed into law by President Lyndon B. Johnson, hardly a right-wing figure. It says that the test for whether a confession is admissible is not whether the Miranda warnings were given, but rather it is the test that courts had applied for two centuries—whether the confession is voluntary. In other words, if the police tie you down and beat you with rubber hoses to get your confession, then courts will exclude that confession because forced confessions are notoriously unreliable. (Under enough duress, many people will confess to just about anything.)
Then a curious thing happened: nothing. For the next three decades, practically everyone ignored that federal statute. As a matter of practice, the Department of Justice didn’t cite section 3501, federal and state courts continued to apply Miranda, and everyone effectively pretended that the federal statute didn’t exist.
Then, finally, in the 2000 case of Dickerson v. United States—thirty-four years after Miranda—the Court was forced to address section 3501. Dickerson came down while I was working on the 2000 George W. Bush presidential campaign. I remember literally laughing out loud when I read the opinion. Here’s why.
My former boss Chief Justice Rehnquist wrote the 7–2 majority opinion, which re-affirmed Miranda and struck down section 3501. That caused legal and media observers to be both amazed and bewildered, even though Rehnquist had been the leading judicial critic of Miranda for decades.
When the Chief passed away in 2005, the Harvard Law Review asked me to write a tribute to him. I did so happily, reflecting on him personally and on his incredible jurisprudential legacy. But I also decided to take the opportunity to explain what I believed was really going on in Dickerson. That, in turn, resulted in the author of one of the leading criminal-law textbooks quoting my remembrance of the Chief at length to help explain the decision.
For three decades, Rehnquist had been fighting to limit the harmful reach of Miranda. And he had enjoyed considerable success, convincing the Court over time to create a number of exceptions to that very broad rule. All of those exceptions were based on the proposition that Miranda was not required by the Constitution; instead, it was merely what the Court called a “prophylactic” (preventative) rule.
When Dickerson came to the Court, I believe the Chief took a measure of his colleagues—in particular Justice Kennedy and Justice O’Connor—and concluded that they simply were not going to vote to overturn Miranda. I have no doubt that, had there been four other votes to do so, the Chief would have enthusiastically provided the fifth vote to overturn Miranda. But the votes weren’t there. And that presented real danger. Because if the Chief voted to overturn Miranda, he would have joined Justices Scalia and Thomas in dissent. And that would mean that the majority opinion would be assigned by the senior justice in the majority, which would have been Justice Stevens.
Justice Stevens had been Rehnquist’s arch-foe for decades in the battle over Miranda. Over and over again, Stevens dissented from Rehnquist’s decisions limiting Miranda’s reach. If the Court were going to preserve Miranda, the only way to do so was to strike down section 3501. And the only basis to strike down a federal statute is that it’s unconstitutional. Which would mean, necessarily, that Miranda is required by the Constitution. Had the Chief voted in dissent, Justice Stevens likely would have assigned the opinion to himself and written something like the following: “The Court has many times stated that Miranda is merely prophylactic. But, over the decades, it has become interwoven into our constitutional fabric. And so today we make explicit what was implicit in our prior cases: Miranda is required by the Constitution. And so we strike down section 3501.”
That holding would likely have set the stage for unwinding every single exception to Miranda that Rehnquist had spent thirty years carefully crafting. It would have resulted in many more guilty criminals being released and many more lives being lost.
To avoid that threat, I believe, the Chief decided to vote with the majority and author the opinion himself. And his opinion, as I read it, simply declares the following three propositions: (1) Miranda is not mandated by the Constitution, but is merely prophylactic, meaning that all of Rehnquist’s carved-out exceptions therefore remain valid; (2) the LBJ-era federal statute purporting to overrule Miranda is not valid and is hereby struck down; (3) do not ask me why and do not ever, ever cite this opinion for any purpose whatsoever.
That’s why I laughed out loud when I read it.
When it comes to criminal law, capital punishment has long been one of the most divisive questions. It’s an issue about which reasonable people can, and often do, disagree. Some argue that capital punishment is unnecessary, is ineffective, is too costly, and results in too long of a delay to have a sufficient deterrent effect. Or they argue that taking a life, in any circumstance,
