IT'S BEEN A HELLUVA WEEK - AND THERE IS MORE TO COME

Well, it turns out I am definitely glad I took all those political science Constitutional Law classes in my “interdisciplinary social sciences” Bachelor’s Degree. I can actually understand when they are baffling us with bullshit.

In all the screaming and yelling over the Supreme Court’s gutting of a state’s right to regulate the arming of its citizenry and a woman’s right to control her body, Samuel Alito’s other crime against humanity seems to have been lost in the shuffle. This happened on Thursday, in between Wednesday’s evisceration of the plain meaning of the Second Amendment and Friday’s evisceration of the Fourteenth, which all followed Tuesday’s assault on the Establishment Clause of the Constitution itself.

I am talking about his decision in Vega v Tekoh. If you think Alito’s partner in crime Thomas was scary with his concurring decision killing Roe where he threatens to go after other cases involving “substantive rights” in the Fourteenth Amendment, Alito’s going after the Fourth, Fifth and Sixth Amendments.

For those keeping score, Vega v. Tekoh is a case about consequences police officers may face for failing to warn suspects about their rights under Miranda v. Arizona before interrogating them. The 6-3 opinion of the reactionary super-majority, written by Justice Samuel Alito (surprise surprise!), holds that cops cannot be sued under a federal civil rights law known as Section 1983 for taking a statement from a suspect who hasn’t received their Miranda warnings. Even if that statement is later used against the suspect in court.

Is that a Big Enough Deal for you???

Justice Elena Kagan’s dissent points out that the decision undermines Miranda by limiting the remedies available for its violation. Under the “Miranda Rule,” a defendant who is not given the warning and who then makes a statement that is introduced against him in court can move to suppress the unwarned statement. If the motion fails, the defendant risks being wrongfully convicted and spending years in prison. Now, even if he eventually gets his conviction reversed, Justice Kagan asks, “what remedy does he have for all the harm he has suffered?” The answer is NONE. The prosecutor who introduced the statement is absolutely immune from civil liability. And now, with this ruling, the defendant can’t sue the cop who took the statement, either.

Throughout the opinion, Alito describes Miranda as a “prophylactic rule.” For those who didn’t go to law school, that means in plain English that Miranda warnings are not directly required by the Constitution (the word “Miranda” not having been used by Madison), but are instead judicially-crafted rules designed to protect people’s core Fifth Amendment right against compelled self-incrimination.

In a very important footnote, Alito questions whether the Supreme Court even has the “authority to create constitutionally based prophylactic rules that bind both federal and state courts.” Alito’s opinion barely conceals the new 6-3 controlling conservative majority’s contempt for such rules.

He concludes that, for now, the Court will treat Miranda as good law. But his signal to prosecutors’ offices is clear: Miranda is suspect, and we’re willing to entertain arguments that we should do away with it for good. Please appeal the next judicial decision supressing the defendant’s statement for vioaltion of “Miranda rights” that the next judge makes. Please!

For the majority of American history, especially in the Jim Crow South, but also in back rooms in Chicago, New York, Boston, San Francisco and Los Angeles (to name just a few where I know of such cases) police coerced confessions that were frequently false from suspects using intimidation or outright violence. While courts were supposed to assess whether such confessions were “voluntary,” the secrecy of interrogation rooms and the massive power imbalance between police and suspects, made this impossible. In 1966, the Supreme Court ruled in Miranda v Arizona that police were required to warn suspects that they have the right to remain silent and to access an attorney; with the decision in Gideon v Florida, the ruling also included the statement “if you cannot afford an attorney, one will be provided to you.” The court made the decision in hopes suspects would quickly acquire counsel, who would ensure that law enforcement did not coerce - or beat - a confession out of the client, ensuring that convictions could withstand appeals.

Anyone over the age of 12 at the time should be able to remember the screams from police and prosecutors in every state of the union in response, that the court had “tied the hands of law enforcement.” That response should have clued anyone to the fact the problem was sufficiently widespread (like everywhere) that the court had been right in its decision.

With the coming of the Rehnquist Court, the reaction to progress began, and over the past 30 years the Supreme Court has steadily done everything it could to narrow and refine Miranda’s ruling in favor of police and prosecutors. Most famously, Dickerson v. U.S. (2000), Chief Justice William Rehnquist himself reaffirmed the ruling with the explanation it had become “part of our national culture.” Immediately after saying that, Rehnquist went to town on his real purpose, calling Miranda a “constitutional rule,” a “prophylactic measure” that demands more than the Fifth Amendment actually requires. Justice Scalia, who never missed an opportunity to let you know he was The Enemy, correctly pointed out in his Dickerson dissent, that if Miranda warnings are not a constitutional right, where does the Supreme Court get the authority to demand them?

Vega puts Scalia’s question front and center. Here are the facts of the case:

Terence Tekoh alleged he was interrogated in police custody without receiving Miranda warnings. During his interrogation, he wrote a confession that was used against him at trial, where he was acquitted. Tekoh filed suit under a law that allows individuals to sue in federal court when the police violate “a right secured by the Constitution,” alleging law enforcement infringed on his Miranda rights by soliciting and submitting an un-Mirandized confession.

Alito rejected this argument summarily: “A violation of Miranda is not itself a violation of the Fifth Amendment.”

According to Alito, Miranda is a “judicially crafted rule.” Before expanding or contracting it, the court must weigh “the benefits and costs” of altering its scope. Here, the “balance of interests” leans against extending Miranda: According to Alito, doing so would require a federal court to adjudicate a question “that had already been decided by a state court,” creating “unnecessary friction” between state and federal judiciaries.

The most important part of Alito’s opinion is the footnote attack on Miranda and Dickerson, in which he says that the assertion that SCOTUS can impose “prophylactic rules” on states and federal courts is “a bold and controversial claim of authority.” Whether the Supreme Court even “has the authority to create constitutionally based prophylactic rules that bind both federal and state courts,” he continued, “has been the subject of debate among jurists and commentators.” For support, he cited various critics of Miranda—including Scalia’s dissent in Dickerson.

This can’t be clearer. Alito and the rest of the reactionary super-majority think the Warren Court civil rights rulings as regards criminal law are wrong but aren’t yet willing to spend the political capital necessary to overrule them. Justice Elena Kagan, who laid out the stakes bluntly at oral arguments: Eradicating Miranda warnings, she warned from the bench, would undermine “the legitimacy of the court” in a “profound sense.”

Conservatives (i.e., the pseudo-conservative reactionaries) have been using complicated- sounding concepts like “causes of action,” “standing,” and “immunities doctrines” to prevent people’s ability to vindicate their rights. While paying lip service to the existence of these rights they rely on technical, hard-to-understand legalese to hollow those rights out, which manages to make their rulings seem less abhorrent and less consequential to a public not knowledgeable about the law. But if you can’t do anything about violations of your rights, your rights are worth nothing.

Alito is obviously slavering to do this as quickly as he can, and Miranda isn’t the only potential target.

Alito’s determination that “A violation of Miranda is not itself a violation of the fifth Amendment” is crucial. In that footnote, he cites a series of law review articles that analyze and critique these “prophylactic” rules. Some are perhaps less familiar than Miranda:

United States v. Pearce, for example, held that in order to ensure that vindictive prosecutors do not retaliate against a defendant who successfully appealed his first conviction, any sentence imposed on retrial that is harsher than the original must be clearly explained in the record, and based upon the defendant’s conduct since the first conviction.

Another article suggests that United States v. Wade, which held that the Sixth Amendment right to counsel applies during post-indictment lineups, is also a “prophylactic” rule.

More alarmingly, one of the articles identifies Mapp v. Ohio, the famous Fourth Amendment case that established the exclusionary rule—holding that evidence obtained illegally cannot be introduced against a defendant at trial—as a “prophylactic-rule” case. The cited article, “Constitutional Common Law” by Professor Henry Monaghan, argues that Mapp is neither “part and parcel of the underlying Fourth Amendment right nor a necessary remedy for it.”

The overall posture of the Thomas-Alito Court towards constitutional rights is clear: The court undermine constitutional rights by weakening or overruling the judiciary’s power to meaningfully enforce them whenever the opportunity presents itself.

After this week of overturning long-held constitutional precedents and laws, it is clear the rights and protections in the Constitution and what is known as Constitutional Law are only as safe as the Supreme Court wants them to be. This “just-asking-questions” footnote in Vega is a trial balloon floated by a Court that has no qualms about overruling precedent it doesn’t like.

As Alito makes quite clear in his opinion, and what the court did on Tuesday, Wednesday and Friday as well as on Thursday, demonstrates that what the Supreme Court created, the Supreme Court can destroy. As Richard Hofstadter described them 68 years ago:

“... although they believe themselves to be conservatives and usually employ the rhetoric of conservatism, [they] show signs of a serious and restless dissatisfaction with American life, traditions and institutions. They have little in common with the temperate and compromising spirit of true conservatism in the classical sense of the word... Their political reactions express rather a profound if largely unconscious hatred of our society and its ways — a hatred which one would hesitate to impute to them if one did not have suggestive clinical evidence.... The pseudo conservative is a man who, in the name of upholding traditional American values and institutions and defending them against more or less fictitious dangers, consciously or unconsciously aims at their abolition.”

Just wait till next week, when the reactionary super-majority destroys the ability of the national government to make regulations to enforce the laws that are passed.

Fasten your seatbelts, there’s bad weather ahead and it’s going to be bumpy.

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