The Volokh Conspiracy

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Justice Scalia's Dissent in Dickerson v. United States Is Vindicated Two Decades Later

Would the current Court have ruled with Justices Scalia and Thomas on Miranda?


Throughout the 1970s and 1980s, the Burger Court limited the scope of Miranda v. Arizona. In Dickerson v. United States (2000), the Rehnquist Court could have halted Miranda altogether. Dickerson involved Section 3501 of the Omnibus Crime Control Act of 1968, which stated that a confession "shall be admissible in evidence if it is voluntarily given." This statute, enacted two years after Miranda was decided, did not require that the suspect be informed of his rights. Dickerson v. United States considered whether Section 3501 was constitutional. Ultimately, three conservative members of the Court — Chief Justice Rehnquist and Justices O'Connor and Kennedy — voted to stand by that landmark precedent. Indeed, these three had previously found that Miranda was wrongly decided.

Justice Scalia dissented, joined by Justice Thomas. They contended that Miranda was not a "constitutional rule" — whatever that is. But more importantly, they identified the limitation of Chief Justice Rehnquist's majority opinion:

One will search today's opinion in vain, however, for a statement (surely simple enough to make) that what 18 U.S.C. §3501 prescribes — the use at trial of a voluntary confession, even when a Miranda warning or its equivalent has failed to be given — violates the Constitution. The reason the statement does not appear is not only (and perhaps not so much) that it would be absurd, inasmuch as §3501 excludes from trial precisely what the Constitution excludes from trial, viz., compelled confessions; but also that Justices whose votes are needed to compose today's majority are on record as believing that a violation of Miranda is not a violation of the Constitution.

Fast-forward three decades. This past term, the Court decided Vega v. Tekoh. Justice Alito states the issue simply in his majority opinion:

Section 1983 provides a cause of action against any person acting under color of state law who "subjects" a person or "causes [a person] to be subjected . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." The question we must decide is whether a violation of the Miranda rules provides a basis for a claim under §1983. We hold that it does not.

The easiest path would have been to simply say that Dickerson was wrongly decided, and Miranda ought to be overruled. Indeed, I suspect 5 or 6 Justices emphatically agree with these statements. But, there were no votes to abrogate that precedent here–especially after Dobbs. Instead, the Court had to reconcile its decision here with Dickerson. And Justice Alito's majority did so by relying on the precise statement that the Dickerson never made: that failing to give Miranda warnings actually violates the Constitution.

Justice Alito wrote:

At no point in the opinion did the Court state that a violation of its new rules constituted a violation of the Fifth Amendment right against compelled self-incrimination. Instead, it claimed only that those rules were needed to safeguard that right during custodial interrogation.

Alito added:

The Court held that Congress could not abrogate Miranda by statute because Miranda was a "constitutional decision" that adopted a "constitutional rule," 530 U. S., at 438–439, and the Court noted that these rules could not have been made applicable to the States if it did not have that status, see ibid. At the same time, however, the Court made it clear that it was not equating a violation of the Miranda rules with an outright Fifth Amendment violation.

One more:

But the obvious point of these formulations was to avoid saying that a Miranda violation is the same as a violation of the Fifth Amendment right.

Chief Justice Rehnquist said everything but that, as Scalia pointed out. Thus, it was possible for Justice Alito to maintain (1) the fiction that Miranda was some sort of phantasmal constitutional rule and (2) Miranda was not a constitutional right. Once again, the modern-day Court exploits the squishiness of Kennedy-era precedents. Unless a principle was stated clearly, it doesn't count.

In dissent, Justice Kagan quotes over and over (and over) again from Dickerson.

Begin with whether Miranda is "secured by the Constitution." We know that it is, because the Court's decision in Dickerson says so. Dickerson tells us again and again that Miranda is a "constitutional rule." It is a "constitutional decision" that sets forth "'concrete constitutional guidelines.'" Miranda "is constitutionally based"; or again, it has a "constitutional basis." It is "of constitutional origin"; it has "constitutional underpinnings." And—one more—Miranda sets a "constitutional minimum." Over and over, Dickerson labels Miranda a rule stemming from the Constitution.

But Kagan still cannot find the sentence that Chief Justice Rehnquist never wrote.

For good measure, Alito cites a bevy of criticisms of Miranda, which he referred to as a "bold and controversial claim of authority."

Whether this Court has the authority to create constitutionally based prophylactic rules that bind both federal and state courts has been the subject of debate among jurists and commentators. See, e.g., Dickerson, 530 U. S., at 445–446, 457–461 (Scalia, J., joined by THOMAS, J., dissenting); D. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190 (1988); J. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100 (1985); H. Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975). But that is what the Court did in Miranda, and we do not disturb that decision in any way. Rather, we accept it on its own terms, and for the purpose of deciding this case, we follow its rationale.

If Dickerson came to this current Court, I doubt it would come out the same way. I think Justice Thomas's position would have commanded a majority opinion.