Thoughts on Vega v. Tekoh, the Pending Miranda Case Before SCOTUS: The Precedent Question
Part One of a series.
Next week, the Supreme Court will hear argument in Vega v. Tekoh, a case about Miranda rights. I flagged a super-interesting historian's amicus brief in the case last week, and I wanted to offer some broader thoughts. I plan to break down my thoughts into a few posts. In this post, I wanted to start with the first question in Tekoh as a matter of precedent. If you take the Court's seriously, which way do the cases take you?
You'll recall, from my prior post, that this is the case asking if a plaintiff has a civil remedy against an officer under 42 U.S.C. 1983 for obtaining a statement inadmissible under Miranda that was later admitted. The case raises two issues. First, is a civil remedy available in such circumstances? Second, who can be sued if this happens?
In this post, I want to explain why I think that, as a matter of precedent, the Ninth Circuit got it right. Under the Court's caselaw, the wrongful admission of a statement made in violation of Miranda violates a person's Fifth Amendment rights and should be actionable under 42 U.S.C. 1983. In future posts, I hope to take on other aspects of the case, such as the causation question.
On to the analysis. As a matter of precedent, it seems to me that the first question has a clear answer that was provided correctly in Judge Eric Miller's typically excellent opinion for the Ninth Circuit below. The logical chain runs like this:
- Chavez v. Martinez indicates through its various opinions that the Miranda violation is complete when a statement is wrongly admitted in violation of Miranda's rules;
- Dickerson v. United States holds that Miranda is a constitutional rule, not some sort of supervisory decision; and
- 42 U.S.C. 1983 provides that a person who "causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law."
Put those three steps together, and there's a constitutional cause of action for a wrongful admission of a statement.
As I understand the officer's argument, especially in the newly-filed reply brief, the main counter is to challenge point 2, that Miranda is a constitutional rule. At least, sort of. Vega treats Miranda as both a constitutional decision and not part of the constitution at all. Miranda is a constitutional decision in the sense that Dickerson said it was, and it applied in Dickerson, which involved a motion to suppress. But Miranda is not part of the constitution at all other than that, in the officer's view, because there are a lot of decisions, especially pre-Dickerson, calling Miranda "prophylactic."
In Vega's view, a "prophylactic" rule is assumed to be a rule that isn't actually part of the constitution at all, as compared to a rule required by the constitution to protect the underlying constitutional right. So you end up, in Vega's telling, with Miranda being both a constitutional decision and not part of the constitution at the same time. Miranda ends up as a rule of evidence for constitutional purposes, but not something that can support a civil suit for constitutional purposes.
To me this seems a pretty odd position. It's constitutional law as quantum physics: Miranda becomes like light, which is both a wave and a particle. Of course, I get the subtext. If the current Supreme Court had decided Dickerson anew, a majority of the current Court very well might have gone the other way and said Miranda was merely a supervisory powers case that can be nullified by legislation. As a tactical matter, then, an argument that doesn't make much sense here might very well work: If you don't think Miranda was on solid ground, then maybe a weird argument that limits it is more appealing than a good argument that doesn't. So I get that.
But as a matter of precedent, it seems to me that Dickerson said what Dickerson said. Unless you want to overturn Dickerson, which Vega isn't asking the Court to do, you have to treat it as the constitutional decision it said it was. And it seems to me that Dickerson ultimately rejected the underlying premises of Vega's argument, and a lot of what Vega is arguing was settled the other way by Dickerson.
Vega presents a different picture, of course. Vega tries to make post-Dickerson caselaw look inconsistent with the natural reading of Dickerson. For example, Vega suggests that the Court treated Miranda as "prophylactic" even after Dickerson in cases like Chavez and Patane. Putting aside the debate over just what "prophylactic" means (and here's a very good article by David Strauss on how useless a term that is), I don't think it's right to suggest that the Court treated Miranda rules as not part of the Fifth Amendment after Dickerson.
Here's what happened, it seems to me. Following Dickerson, Justices Thomas and Scalia, the two Dickerson dissenters, continued writing Miranda opinions using the basic framing of their Dickerson dissent. In some of the cases, there were five votes for the results Justices Thomas and Scalia reached. Presumably, Chief Justice Rehnquist assigned Justice Thomas to try to write the majority opinion in those cases. But Justice Thomas didn't get a majority. So he ended up wring a plurality opinion in Patane, joined by Rehnquist and Scalia, as well as a judgment of the Court in Chavez joined in relevant part only by Rehnquist.
Vega's reply brief relies a lot on those Thomas opinions. They get treated as authoritative guides to the true meaning of Dickerson, and thus the true meaning of Miranda. But from the standpoint of precedent, it seems to me, they're just the views of three Justices that didn't command a majority of the Court. And given that their language often echoes the Dickerson dissent, they seem like puzzling guides to understand the majority opinion in Dickerson.
In his reply brief, Vega suggests that the fact that Chief Justice Rehnquist signed to to these opinions post-Dickerson is meaningful because, although Justices Scalia and Thomas dissented in Dickerson, Chief Justice Rehnquist wrote the Dickerson majority opinion. "Any doubt about what the Court meant in Dickerson is resolved," Vega says, "by how its author—Chief Justice Rehnquist—subsequently treated Miranda in Chavez." By joining the opinion in Chavez that said Miranda was prophylactic, Vega says, Rehnquist must have signaled the true meaning of Dickerson: "There is no reason to credit Tekoh's interpretation of Dickerson over Chief Justice Rehnquist's."
But c'mon. Majority opinions of the Supreme Court are not the property of their individual authors. They do not have secret meanings later uncovered by what their authors individually later said or signed on to. The opinions have to stand on their own. That's particularly relevant here given that claims have been made that Chief Justice Rehnquist didn't really mean what he said in Dickerson. I don't know if that accusation is true. But whether it is true or false, Rehnquist's later actions can't somehow undo what the Opinion of the Court he authored in Dickerson actually said or means.
If you take precedent seriously, it seems to me, Dickerson answered the first question of Tekoh in Tekoh's favor.
Full disclosure: I have previously discussed this case with counsel for Tekoh, although of course all views here are entirely my own.