Document Type

Article

Publication Date

2017

Abstract

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use baseball terminology, in Miranda’s first eleven “at bats,” it went zero for eleven. For those of us who welcomed Miranda, this turned out to be deeply disappointing. But it would not have come as much of a surprise to those who remember the four Justices President Nixon appointed to the Supreme Court during his first term of office: Chief Justice Burger, Justice Blackmun, Justice Powell, and Justice Rehnquist. Before being appointed Chief Justice of the Supreme Court, then-Judge Burger of the Court of Appeals for the District of Columbia Circuit left no doubt, both in his dissenting opinions and in public speeches, that he was extremely unhappy with the Warren Court’s criminal procedure cases. Chief Justice Burger may have been the most police-friendly Supreme Court Justice of all time—only with the possible exception of another Nixon appointee, William Rehnquist. In fact, shortly after Rehnquist became Assistant Attorney General in charge of the Office of Legal Counsel, he urged the President to appoint a commission to consider whether such cases as Miranda needed to be corrected by a constitutional amendment. As for Justice Blackmun and Justice Powell, neither one’s appointment to the Court should have come as much of a surprise either. Chief Justice Burger had recommended then-Judge Blackmun, a close friend since their childhood days, to President Nixon for a nomination to the Court. It was widely assumed that Justice Blackmun would follow the new Chief Justice’s lead. As for Justice Powell, when the National Crime Commission issued its report in 1967, the future Justice turned out to be one of seven members of the Commission to sign a supplemental statement underscoring the need to return to the pre-Miranda “voluntariness” test—even “[i]f, as now appears likely, a constitutional amendment is required.” In retrospect, I think it is fair to say that Miranda never recovered from Nixon’s four Supreme Court appointments.


Share

COinS