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Judicial minimalism is gone?

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So Adam Liptak writes in the NYT. I have a different view.

Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.
A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.

Really?  Let's look first at the criminal cases, the ones I know the most about.


This term, the court was focused on the Miranda rule, which requires the police to warn suspects in custody of their rights before interrogating them. In three decisions this term, the court allowed the police to vary the language of the warning, insist that suspects speak in order to protect their right to remain silent and resume questioning after suspects have invoked their rights.

"The court continues its march to restrict exclusionary rules," said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. "The court is refusing to exclude what the court thinks is reliable evidence in criminal cases. None of the conservatives are unpredictable in any of these cases. They're leading the retreat."
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"I'm struck by the ways in which the conservatives seem to be willing to take significant steps on core questions," Mr. [Thomas] Goldstein said, noting campaign finance and Miranda rights as examples. "In other cases, the five more conservative members of the court don't seem to be prepared to press every advantage."

Yes, the Court did decide three Miranda cases, but the way it decided them is very much consistent with judicial minimalism and hardly constitutes pressing every advantage. If the Court were as "assertive" in the pro-law-enforcement direction as the Warren Court was in the pro-defendant direction, it would simply have overruled Miranda.  In fact, Miranda remains robust.  The Court pruned away some excess growth on the fringes.

Start with Maryland v. Shatzer. That case dealt with the rule of Edwards v. Arizona that police must not only stop questioning a suspect in custody when he invokes, but they can't even ask him later if he has changed his mind. In Shatzer, the Court extended the Edwards rule for two weeks after the person has been released from police custody.  Justice Scalia wrote that, over Justice Thomas's dissent. That's not unpredictable, Professor Fisher?  The prune-back occurred in the Court's clarification that being in the general prison population is not custody for the purposes of the Miranda interrogation rule. The prisoner is in custody, of course, but he is not in the custody of the people interrogating him, and they have no control over when he is released or the conditions in which he lives. The psychological pressures of police custody that underlie Miranda are inapplicable.

Then there is Berghuis v. Thompkins. Liptak's description of the holding that suspects must "speak in order to protect their right to remain silent" is not correct.  A suspect can exercise his right to remain silent by remaining silent after Thompkins as before. Speaking up is required only to further require the police to be silent, i.e., cease questioning. It is a significant decision, but nowhere near as aggressive as we saw in the 1960s and 1970s.

Florida v. Powell, on minor variations in the wording of the Miranda warnings, is no big deal. It's a 7-1-1 decision by Justice Ginsburg, after all. The standard warnings are badly in need of revision.

In other criminal cases, the Court certainly was minimalist. Berghuis v. Smith kept intact the pseudo-constitutional requirement that the jury pool reflect a "cross-section of the community," a requirement fabricated from thin air by the Warren Court, contrary to the unmistakable history of the Sixth Amendment. The Court reversed the Sixth Circuit on the narrow ground that they had overturned a judgment of the Michigan Supreme Court merely because they disagreed on a methodology question not yet resolved by the U.S. Supreme Court, which Congress forbade in AEDPA.

Speaking of methodology, Wood v. Allen was supposed to resolve a question about how to treat state court findings of fact when the case reaches federal habeas. Instead, the Court affirmed on the very minimalist ground that the Court of Appeals decision was right under either interpretation.

Hopes that the Court might reconsider its decision in Melendez-Diaz v. Massachusetts, or at least provide some clarification, were dashed when the Court simply sent Briscoe v. Virginia back to the Old Dominion to reconsider, the ultimate minimalist decision.

Padilla v. Kentucky expanded the grounds for overturning judgments for ineffective assistance of counsel. Now collateral consequences in immigration have to be considered.  If that is assertive, it is in the other direction.

In the honest services cases, Skilling et al., the Court saved a statute of dubious constitutionality by giving it a restrained interpretation. That is certainly consistent with judicial minimalism.

The big decision of the year for criminal law is Graham v. Florida. That decision is indeed assertive and rejecting of judicial minimalism, but it was not led by Chief Justice Roberts and is not in the conservative direction. Roberts wrote a minimalist concurrence, but no one else joined it.

What about noncriminal cases?  In the guns case, the Court did "incorporate" the Second Amendment as applicable to state laws, but that result was nearly a foregone conclusion between Heller's description of the right to bear arms and the Warren-era precedents on incorporation. The Court reiterated the language from Heller that virtually guarantees no moderate gun-control laws will be struck down. It passed on the invitation to overrule the Warren Court approach to incorporation and go back and slaughter the Slaughterhouse Cases, one of the worst decisions of the nineteenth century.*

What about campaign finance? It's not my field, but it seems to me that the people wailing and gnashing their teeth over this are proceeding on a premise that these laws actually work in reducing big-money influence in politics. Justice Stevens had no such illusions seven years ago in McConnell. "Money, like water, will always find an outlet."

I don't see a seismic shift this term. Look for next term to be similar, as Justice Kagan will vote pretty much as Justice Stevens would have.



* I reconsidered my earlier statement that Slaughterhouse was the second worst. It's a photo finish for place.

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I can scarcely improve on Kent's analysis, and will confine myself for now to a brief comment on the misleading character of the NYT article.

The article quotes Greg Garre and Paul Clement and correctly identifies them as Solicitors General during the Bush Administration. So far, so good.

It then quotes Stanford Professor Jeffrey Fisher as "someone who argues frequently before the Court." Indeed he does. What the article neglects to mention is that Fisher argues uniformly in favor of criminals and terrorists. He heads the Stanford Supreme Court Litigation Clinic. It was the unrelieved pro-defense bias of the Clinic that led me to quit contributing to my alma mater.

Stanford then sent me a few e-mails urging me to resume giving, noting that the new law school would feature the Rehnquist Garden, so, you see, things were sort of balanced.

I'm not making this up.

Then the NYT quotes Tom Goldstein, identifying him as the prime mover of SCOTUSblog. And that he is, in addition to being a first-tier Supreme Court advocate. But again something is left out: Goldstein has been leading the cyberspace charge for Elena Kagan. If you take a look at SCOTUSblog over the last few weeks, you'll see that Goldstein has one entry after the next on Kagan, ranging from informative to fawning. A neutral observer he is not, the NYT's omissions notwithstanding.

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