Chief Justices

John Marshall Saves the Republic

Harlow Giles Unger — Wed, 12 Feb 2020 12:29:54 +0000

John Marshall Saves the Republic Harlow Giles Unger Wed, 02/12/2020 - 07:29

The Miranda Decision, 51 Years Later

Jack Kelly — Tue, 13 Jun 2017 18:08:06 +0000

The Miranda Decision, 51 Years Later Jack Kelly Tue, 06/13/2017 - 14:08

. . . Anything you say can and will be used against you in a court of law. That mantra, a Supreme Court justice once estimated, is familiar to two billion people around the world, mostly from its regular recitation in television crime dramas. Of all the rights guaranteed under our Constitution, no other is pointed out as often or as clearly. Why?

Detectives read Miranda rights to a fugitive felon (Wikipedia/J. Ross Baughman)

In the case decided 51 years ago today that led to the ubiquity of the Miranda warning, the U.S. Supreme court held that the Fifth Amendments stipulation that a citizen not be compelled in any criminal case to be a witness against himself was the essential mainstay of our adversary system. Miranda v. Arizona was a bitterly controversial decision of the Warren court, but in time it became what Justice Stephen Breyer called a hallmark of American justice.

Police investigating a series of robberies and rapes in Phoenix, Arizona, during the spring of 1962 were drawn to Ernesto Miranda because witnesses had spotted him driving a car in the vicinity of one of the crimes. The victims could not positively identify him in a lineup, but the police told him they did. He confessed, was convicted, and received a stiff sentence.

The courts had long held that forced confessions were not admissible as evidence. In a 1935 case in which three defendants were tortured by Mississippi sheriffs into confessing, Chief Justice Charles Evans Hughes said that while individual states could regulate their own courts, they were obliged to follow due process. The rack and torture chamber may not be substituted for the witness stand. A statement had to be voluntary.

But what did voluntary mean? For a suspect held in police custody under intimidating circumstances, where did coercion begin? Justice Felix Frankfurter understood that the distinction between voluntary and coerced confessions is not a matter of mathematical determination but rested on psychological judgment.

The question was intimately entwined with the Sixth Amendments guarantee to the accused of assistance of counsel for his defense. This right had been affirmed in the Scottsboro case of 1932, when the U.S. Supreme Court overturned the rape conviction of several Alabama youths because they had been denied adequate legal representation.

In the 1963 case Gideon v. Wainwright, the court strengthened the right to counsel by ruling that a man convicted of robbery who could not afford a lawyer had to have one appointed for him by the state. A year later, when Danny Escobedo confessed to a Chicago murder after being denied a chance to see his lawyer, the court overturned his conviction, holding that in such an instance no statement elicited by the police during the interrogation may be used against him.

The Miranda case was the culmination of this trend toward, as Time magazine put it, moving the constitution into the police station. It evolved out of a growing realization that false confessions were not uncommon and that the police could coerce without resorting to the rubber hose. In the decision handed down on June 13, 1966, Chief Justice Earl Warren, writing for the 5-4 majority, recognized that the third degree was a venerable tradition in American law enforcement (the term itself comes from the rigorous questioning of candidates for a high level of the Masonic order). The very fact of custodial interrogation, Warren found, exacts a heavy toll on individual liberty and trades on the weakness of individuals.

In order for a statement to be assumed voluntary, the suspect had to be informed of four things before being questioned: (1) his right to remain silent, (2) the fact that his statements could be used against him, (3) his right to the presence of an attorney, and (4) the obligation of the state to provide counsel if he couldn’t afford it.

The decision did Ernesto Miranda little good. He was retried without the confession and again convicted. He served almost 10 years before being paroled. He briefly traded on his celebrity by selling autographed Miranda warning cards in Phoenix for $1.50 each.
The Miranda decision immediately became part of the struggle during the 1960s between civil libertarians and advocates of law and order. Dissenting justices wrote that the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. Opponents of the ruling thought it absurd to require police in effect to coach witnesses not to talk.

Congress, unnerved by rising crime rates and domestic unrest, acted two years after Miranda. As part of the Omnibus Crime Control Act of 1968, legislators essentially overturned the decision and returned procedures to the days when voluntary statements were judged according the totality of circumstances surrounding the interrogation. But wary prosecutors and police shunned the new law, fearing that its overruling of the courts might be unconstitutional and not wanting to be the ones to test it. So it was virtually never invoked, and it wasn’t brought before the Supreme Court for almost 32 years.

Accumulating evidence showed that Miranda didn’t hamstring the police as much as had been feared anyway. One study found that through 1988 fewer than one percent of criminal cases had been dismissed because of unwarned confessions.

Still, the perceived leniency toward wrongdoers rankled some. Asked whether suspects should have a lawyer present during questioning, then Attorney General Edwin Meese III declared in 1985, Suspects who are innocent of a crime should. Justice Antonin Scalia opined that the ruling had led to the acquittal and the non-prosecution of many dangerous felons.

Miranda’s well as the 1968 law that supposedly overturned it faced its strongest challenge in a case decided by the Supreme Court in June 2000. Charles Dickerson had given statements to police implicating himself in a series of bank robberies around Alexandria, Virginia. He had not been read the Miranda warnings at the time. The Fourth Circuit Court of Appeals judged Dickersons statement voluntary and therefore admissible under the 1968 law. Dickerson’s lawyer argued before the Supreme Court that any waiver of his Miranda rights had to be made knowingly and intentionally, not just voluntarily.

In a 7-2 decision, the Supreme Court held that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress. The Dickerson ruling was an overwhelming affirmation of the right to remain silent in the face of police interrogation.

Though the Miranda warning has become a permanent part of our legal system, related issues continue to surface. Both the entanglement of military and legal procedures after the attacks of September 11, 2001, and the increasingly global nature of national-security investigations have raised new questions about Miranda rights. The issue of self-incrimination arose in the prosecution of the American Taliban John Walker Lindh in 2002 but was rendered moot by Lindh’s guilty plea. The need to provide Miranda warnings to suspects apprehended overseas or in war zones remains a murky question.

As for Ernesto Miranda, shortly after his original release he was returned to jail on a parole violation. Freed for good in 1975, he was stabbed to death a year later in a bar brawl. The prime suspects in his killing were read their Miranda rights, did not implicate themselves, and were never prosecuted.

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Chief Justice Fashions

John Steele Gordon — Mon, 19 Sep 2005 20:05:49 +0000

Chief Justice Fashions John Steele Gordon Mon, 09/19/2005 - 16:05

The judicial fashion statement of the Chief Justice wearing four gold stripes on his sleeves, while the sleeves of associate justices are unadorned, is a lot more recent than his official title, which, as Frederic Schwarz points out, dates to late in the nineteenth century. In fact it only dates to the middle of the late Chief Justice Rehnquist’s term, after he saw a production of Gilbert and Sullivan’s Iolanthe.

One of the major characters in the operetta is the Lord Chancellor, a powerful position in the British government. He presides over the House of Lords, is the head of the judiciary, and sits in the cabinet. As Gilbert explains in the Lord Chancellor‘s opening song:

The Law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw,
And I, my lords, embody the law.

The Lord Chancellor’s elaborate official robes positively drip with gold, and Rehnquist—a Gilbert and Sullivan fan (as am I)—promptly had a scaled-down version, suitable to a republic, made up for himself.

I was hoping that one of the senators at the recent hearings in the Judiciary Committee would ask Judge Roberts if he intended to continue wearing gold stripes on his sleeves if confirmed for Chief Justice. It would have been a perfect opportunity for him to say that here, certainly, was a case where the doctrine of stare decisis should be faithfully followed.

Since no senator asked the question, I guess we will have to wait for October 3 to see what Chief Justice Roberts is wearing when he steps from behind the curtain.

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Well, It Depends

Frederic D. O'Brien — Sun, 18 Sep 2005 02:20:34 +0000

Well, It Depends Frederic D. O'Brien Sat, 09/17/2005 - 22:20

My colleague John Steele Gordon is correct to say that “Chief Justice of the United States” is the official title currently in use, but several points should be noted:

(1) As a lowercase, descriptive title, “chief justice of the Supreme Court” is entirely unassailable. In journalistic usage we often see it contracted still further to “Supreme Court Chief Justice,” which isn’t wrong either, just informal.

(2) Insisting on the use of official titles in all cases can lead to madness. I don’t think any harm is done by talking of “Princess Diana” instead of “Diana, Princess of Wales,” which was her official title, or by lopping off the last three words from “State of Rhode Island and Providence Plantations,” or by speaking of the intersection of “Sixth Avenue and 14th Street” rather than “Avenue of the Americas and West 14th Street.”

(3) The official designation has gone back and forth through the years. As Charles Warren wrote in The Supreme Court in United States History (1926): “The official title of the Chief Justice seems to have varied at different periods of the Court’s history. Jay was commissioned under the title of ‘Chief Justice of the Supreme Court of the United States,’ as were Rutledge, Ellsworth, Marshall, Taney, Chase, and Waite. Fuller was commissioned as ‘Chief Justice of the United States.’“ This was in 1888, a century after the Constitution was adopted.

After citing the same section of the Constitution that Mr. Gordon does, Warren continues: “The Judiciary Act of Sept. 24, 1789, provided that the Supreme Court ‘shall consist of a chief justice and five associate justices.’ The Act of July 13, 1866, c. 210, for the first time officially used the term ‘Chief Justice of the United States’ providing that ‘thereafter the Supreme Court shall consist of a Chief Justice of the United States and six associate justices.’” It’s interesting that this change took place just after the Civil War; that was also when Americans started saying “the United States is” instead of “the United States are.”

Warren goes on to cite statutes from 1869 and 1911 that refer to “Chief Justice of the United States,” and ones from 1873, 1902, and 1911 that refer to “the Chief Justice of the Supreme Court of the United States.” In fact, the two 1911 statutes with contrary wording were enacted on the same day (can you guess which day? that’s right, March 3). So while the title currently in use by the U.S. government is “Chief Justice of the United States,” the usage has been anything but consistent over the years.

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Chief Justices