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Jewish World Review July 3, 2000/ 30 Sivan, 5760

Charles Krauthammer

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Supreme Hypocrisy -- SOME PEOPLE have John Grisham. Others Tom Clancy. Not me. For sheer power, stiletto prose and verbal savagery, I'll take Antonin Scalia.

Scalia is not a fiction writer. He is more of a critic of fiction--the kinds of fiction produced routinely by a majority of the Supreme Court. If you're tired of beach reading and would like a dose of Scalia, I recommend a minor classic just issued Monday: a merciless deconstruction of the 7 to 2 majority ruling upholding Miranda.

In its 1966 Miranda ruling, the court decreed that if a suspect had not been read his rights, his confession had to be deemed involuntary and a violation of the Fifth Amendment. Now, the question is extremely interesting: Should voluntariness be determined, as it had been for 200 years, by the "totality of circumstances" surrounding the confession? Or should there be a single bright-line test, namely whether the cops read the guy his Miranda rights?

The current court did not want to answer that question again. It cobbled together an opinion that simply says: Well, we made the rule many years ago, it seems to work and we are not about to overturn precedent. Q.E.D.

Nothing could be more calculated to drive Scalia over the edge than this kind of intellectual laziness. He points out that in at least four post-Miranda cases, the court has undermined its constitutional basis.

One of the more famous is the case in which the cops arrested a suspected rapist in a grocery store. They had information he was carrying a gun. They asked where it was. He pointed and told them. The gun and his statement were ruled admissible even though they had been given before the defendant had received any Miranda warnings.

The court acknowledged, explains Scalia, that "if the Miranda warnings were an imperative of the Fifth Amendment itself, such an exigency exception would be impossible." The court explicitly admitted in this case that these Miranda warnings are just "prophylactic," but "not themselves rights protected by the Constitution."

Well then, says Scalia. If the Miranda rules are not imperatives of the Fifth Amendment, how can the court throw out a federal statute (at issue in the case handed down Monday) that sets a voluntariness requirement for confessions without requiring Miranda warnings?

How, says Scalia? Easy. By dodging. The majority sheepishly admits that, yes, "there is language in some of our opinions that supports the view that Miranda's protections are not 'constitutionally required.' "

Here Scalia reaches for his ultimate weapon, the rapier italic. "It is not a matter of language, it is a matter of holdings. The proposition that failure to comply with Miranda's rules does not establish a constitutional violation is central to the holdings" of these four cases.

The court's second dodge--that, well, constitutional rules are not immutable and always subject to modification--is mere incoherence. "The issue," writes Scalia, ". . . is not whether court rules are 'mutable'; they assuredly are. It is not whether, in the light of 'various circumstances,' they can be 'modified'; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."

There is no denying Scalia's point. The majority doesn't even attempt to. Miranda is simply arbitrary, willful judge-made law.

Now, it happens that, like most Americans, I am pleased with the results of this particular judge-made law. When people around the world go the movies, they see a bad guy who has just murdered a nun, impaled a policeman and blown up a school, collared by Eastwood or Stallone or Tommy Lee Jones. What are the first words out of the good guy's mouth? "You have the right to remain silent." The viewer has to wonder what kind of political paradise America really is. People seeing this in Belgrade and Harare and Kuala Lumpur, places where the innocent get whacked and beaten and tortured at the whim of the authorities, can only be awestruck at a country that treats even its monsters with such delicacy.

Scalia is right that Miranda is a "milestone of judicial overreaching." And yet Miranda, born illegitimate and living on illogic, has turned into one of the glories of American democracy.

In the best of all possible worlds, the court would overturn Miranda and Congress would reinstate it as a statute. That won't happen. Instead, we get to live with a delicious contradiction: We keep Miranda; we enjoy Scalia. Who says G-d doesn't smile upon the United States of America? hope.

Comment on Charles Krauthammer's column by clicking here.


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