When Barack Obama was elected President, a major concern for those of us who believe in actually enforcing the criminal law was how much "change" we would see in the Department of Justice generally and in the Solicitor General's advocacy in the Supreme Court particularly. Our experience with the Clinton Administration (see below) combined with the fact that Obama is considerably further left than Clinton raised concerns that the SG's office would change from a consistent defender of law and order into a voice for further inflation of already bloated protections for criminal defendants.
Yesterday, we saw with some relief that the new SG is willing to call a spade a spade and denounce one of the more pointless and unjustified rules requiring exclusion of valid evidence. In Michigan v. Jackson, 475 U.S. 625 (1986), the Court handed down one of those maddening rules where it extrapolates its own precedents to unjustified lengths, creating new restrictions far removed from any realistic view of what the real Constitution actually requires.
Yesterday, we saw with some relief that the new SG is willing to call a spade a spade and denounce one of the more pointless and unjustified rules requiring exclusion of valid evidence. In Michigan v. Jackson, 475 U.S. 625 (1986), the Court handed down one of those maddening rules where it extrapolates its own precedents to unjustified lengths, creating new restrictions far removed from any realistic view of what the real Constitution actually requires.
Edwards v. Arizona, 451 U.S. 477 (1981) established that when a suspect has once asked for counsel to be present during custodial interrogation, the police cannot approach him again to ask if he has changed his mind and wants to waive that right. (The duration of that ban is at issue in Maryland v. Shatzer, No. 08-680, for next term. More on that later.) The purpose was to prevent police from badgering a defendant into a waiver. Edwards itself was quite a stretch, but Jackson took it a step further. A defendant who had asked for an attorney to represent him in court could not be asked if he wished to speak to the police without an attorney, a different though related matter. The Court has several times referred to Edwards as a "prophylactic rule," and as we all know from our youthful water-balloon experiments, prophylactics can only be stretched so far before they break.
The reasons why Jackson is wrong require no further explanation here. See Justice Rehnquist's dissent in Jackson itself and Justice Kennedy's concurrence in Texas v. Cobb, 532 U.S. 162 (2001). After oral argument in Montejo v. Louisiana, No. 07-1529, the Court asked for supplemental briefing on whether Jackson should be overruled. Between the Cobb opinions and the Montejo argument, it doesn't take the Great Carnac to predict that the answer will be yes, 5-4, with the Cobb dissenters in the dissent again.
What is interesting, and the only reason this is worth blogging, is that the new SG has weighed in on the side of overruling Jackson. The brief is available on the SG's web site. There is nothing surprising in it. The position taken does demonstrate that Ms. Kagan is willing to weigh in where she could have just passed and take a position contrary to the views of both the vast majority of her former colleagues in academia and President Obama's supporters on the loony left. The prevailing view in both of those camps is "Brennan's rachet" -- precedents can be merrily overruled if they favor the prosecution, but any precedent favoring the defendant is absolutely untouchable no matter how badly reasoned, constitutionally unjustified, or contrary to the truth-finding function of trials.
So, the current Administration is, so far, not as bad as I had feared. We will be keeping a close watch.
I mentioned earlier the sorry experience of the previous Democratic Administration. In Miller v. French, 530 U.S. 327 (2000), SG Waxman told the Court that to save the constitutionality of the Prison Litigation Reform Act it had to construe it so narrowly as to defeat one of its major purposes. With amici like that, who needs enemies? Fortunately, the Court listened to the State and other amici (including yours truly) and upheld the Act as written. Most notoriously, in Dickerson v. United States, 530 U.S. 428 (2000), the Waxman crew went over the hill in their own case, claiming there was no reasonable argument that could be made in defense of Congress's anti-Miranda act, 18 U.S.C. ยง3501. Sure there was. If nothing else, it was certainly reasonable to argue that Miranda was wrongly decided in the first place. That was an argument that Waxman disagreed with, but to say that it was so unreasonable as to relieve the SG of his duty to defend a defensible Act of Congress was disingenous. Let's hope we don't see either of these debacles repeated in the current Administration.
The reasons why Jackson is wrong require no further explanation here. See Justice Rehnquist's dissent in Jackson itself and Justice Kennedy's concurrence in Texas v. Cobb, 532 U.S. 162 (2001). After oral argument in Montejo v. Louisiana, No. 07-1529, the Court asked for supplemental briefing on whether Jackson should be overruled. Between the Cobb opinions and the Montejo argument, it doesn't take the Great Carnac to predict that the answer will be yes, 5-4, with the Cobb dissenters in the dissent again.
What is interesting, and the only reason this is worth blogging, is that the new SG has weighed in on the side of overruling Jackson. The brief is available on the SG's web site. There is nothing surprising in it. The position taken does demonstrate that Ms. Kagan is willing to weigh in where she could have just passed and take a position contrary to the views of both the vast majority of her former colleagues in academia and President Obama's supporters on the loony left. The prevailing view in both of those camps is "Brennan's rachet" -- precedents can be merrily overruled if they favor the prosecution, but any precedent favoring the defendant is absolutely untouchable no matter how badly reasoned, constitutionally unjustified, or contrary to the truth-finding function of trials.
So, the current Administration is, so far, not as bad as I had feared. We will be keeping a close watch.
I mentioned earlier the sorry experience of the previous Democratic Administration. In Miller v. French, 530 U.S. 327 (2000), SG Waxman told the Court that to save the constitutionality of the Prison Litigation Reform Act it had to construe it so narrowly as to defeat one of its major purposes. With amici like that, who needs enemies? Fortunately, the Court listened to the State and other amici (including yours truly) and upheld the Act as written. Most notoriously, in Dickerson v. United States, 530 U.S. 428 (2000), the Waxman crew went over the hill in their own case, claiming there was no reasonable argument that could be made in defense of Congress's anti-Miranda act, 18 U.S.C. ยง3501. Sure there was. If nothing else, it was certainly reasonable to argue that Miranda was wrongly decided in the first place. That was an argument that Waxman disagreed with, but to say that it was so unreasonable as to relieve the SG of his duty to defend a defensible Act of Congress was disingenous. Let's hope we don't see either of these debacles repeated in the current Administration.
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