In the middle of a seismic two weeks at the U.S. Supreme Court, a ruling that weakened a safeguard for criminal suspects went virtually unnoticed.
The court, in a 6-3 decision in Vega v. Tekoh, found that a failure by police to provide a Miranda warning, which notifies a suspect of their right to remain silent, is not a violation of the Constitution’s Fifth Amendment protections against self-incrimination.
The majority opinion, written by Justice Samuel Alito, determined that the defendant in the case – who was ultimately acquitted, even though he did not receive a Miranda warning and his statement was admitted at his trial – had no right to sue the police. A violation of Miranda rights is not included in a person’s Fifth Amendment rights and would go against the principle of “judicial economy” – which aims to conserve the resources of the justice system – if police could be sued, Justice Alito wrote.
The dissenting opinion, written by Justice Elena Kagan, suggested the majority’s decision was at best disingenuous and noted that the ruling could lead to more wrongful convictions. “He may succeed on appeal, or in habeas, in getting the conviction reversed. But then what remedy does he have for all the harm he has suffered,” she wrote. “The majority here, as elsewhere, injures the right by denying the remedy.”
It is not surprising that the ruling was overshadowed. In the final two weeks of this year’s term, the court found that there is no constitutional right to an abortion, expanded the right to carry guns outside the home, ordered states to fund religious schools, put on hold a lower court order that concluded Louisiana’s electoral map is discriminatory and weakened the authority of the federal government to reduce carbon emissions from power plants.
Eric Segall, a constitutional law professor at Georgia State University, said it is hard to overstate the impact of these rulings. “The past 11 days have been perhaps the most significant in terms of constitutional law since 1857,” said Prof. Segall, referring to the year the Supreme Court issued its Dred Scott decision, which stated that the Constitution did not give the right of citizenship to Black people.
The conservative wing of the Supreme Court comprises six of the nine judges. Their judicial philosophy includes “originalism,” which states that constitutional text should be interpreted as it was understood when it was written. The majority has also stressed that any analysis of a constitutional right must examine whether it is deeply rooted in the history or traditions of the country.
The liberal wing of the court – justices Kagan, Sonia Sotomayor and Stephen Breyer (who retired on June 30 and was replaced by Ketanji Brown Jackson) – have written a number of pointed dissenting opinions, especially since Justice Amy Coney Barrett was confirmed just eight days before the 2020 presidential election, arguing that the majority is activist and selective in its historical analysis.
Melissa Murray, a constitutional law professor at New York University, agrees with that assessment: “They ignore the history and tradition that does not work for them. Instead, they appear to be pushing an agenda that was drafted by the conservative movement.”
In many cases, the analysis outlined by the conservative wing is contrary to the stated wishes of the drafters of the Constitution, suggests Michele Goodwin, a chancellor’s professor at the University of California, Irvine School of Law who specializes in constitutional law and reproductive rights. “If you are looking for intellectual rigour, you will be disappointed. They are paying a disservice to the intelligence of the framers,” said Prof. Goodwin, suggesting the Constitution was not intended to be rigid.
The decision in Dobbs v. Jackson Women’s Health Organization distorts historical views of the right of a woman to have an abortion, Prof. Goodwin said. In a recent opinion piece for The New York Times, she explained that much of the historical record behind the 13th Amendment, which abolished slavery, and the 14th Amendment, which provided for equal protection under the law, recognized the sexual violence and reproductive cruelty Black women faced under slavery.
The majority opinion, again written by Justice Alito, cited a number of state laws in existence before these amendments that restricted abortion. “The Civil War was coming. These laws were about the importance of white women having more children,” Prof. Goodwin said.
The dissenting judges in Dobbs were also particularly dismissive of a concurring opinion by Justice Brett Kavanaugh. He stated that the majority was being “neutral” on the issue of bodily autonomy by leaving it up to state legislatures to decide.
“When the court decimates a right women have had for 50 years, the court is not being ‘scrupulously neutral,’” the dissenting opinion stated. “His position just is what it is: a brook no compromise refusal to respect a woman’s right to choose, from the first day of pregnancy.”
The ruling that expanded the right to carry a gun outside the home struck down a New York state law that was more than 100 years old. Justice Clarence Thomas referred to a section of the Dred Scott ruling to argue that there was historical support for expanded gun rights.
“If blacks were citizens [Chief Justice] Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right ‘to keep and carry arms wherever they went.’ Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms,” Justice Thomas wrote.
Originalism as a legal theory emerged in the late 1960s in response to what conservatives saw as an overly activist Supreme Court. Prof. Segall says there is merit to the framework as a way of analyzing the Constitution, but this is not what is being practised today by the majority. “They have dropped the deference and restraint aspects of its original meaning,” he said.
Special to The Globe and Mail
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