Whether or not one believes that America is suffering a crisis of runaway judicial activism, there is at least a broad consensus on this point: The Supreme Court led by Chief Justice William Rehnquist has significantly weakened the protections enjoyed by criminal suspects and convicted prisoners. This widely accepted view is spread by journalists and liberal legal interest groups, both of whom seem genuinely convinced of it. But is it so?
A review of recent decisions reveals a court with more kinship to Judge Harold Baer than Judge Roy Bean. Since Rehnquist became chief, the court not only has refused to overturn any of the major Warren-court decisions establishing new criminals’ rights. It has affirmed every one of these rights that has come before it. Indeed, it has actually expanded some rights, if only in a gradual and somewhat arcane manner.
In this connection, three cases from last term stand out. Each deals with one of the more vexing criminals’ rights invented in the last few decades: the exclusionary rule, Miranda, and the right of prison inmates to law libraries. In the first two, the Warren-court right was actually expanded, while in the third the novel right was preserved and defended in ringing language. Taken together, these cases suggest that the landmark criminals’ rights rulings of recent decades are now firmly embedded in American law, to the continuing detriment of law enforcement and a crime-weary public.
Consider, first, the court’s recent treatment of the exclusionary rule. Fashioned out of the Fourth Amendment’s protection against unreasonable searches and seizures, this rule holds that incriminating evidence obtained in violation of the Fourth Amendment cannot be admitted at trial. The result is that police officers who gather incriminating evidence in confusing and perilous circumstances sometimes see their hard work thrown out of court because a judge determines, after the fact, that they lacked “probable cause” to search a house or vehicle. Instead of enforcing the Fourth Amendment simply by punishing wayward cops, the rule gives suspects a windfall: In the words of Justice Benjamin Cardozo, “The criminal is to go free because the constable has blundered.”
The exclusionary rule has long drawn the ire of conservatives. Yet last term, the Rehnquist court extended its reach. In Ornelas v. United States, the court took up the case of two drug dealers who pleaded guilty to possession of cocaine with intent to distribute. In December 1992, a veteran policeman conducting drug-interdiction surveillance in downtown Milwaukee noticed an older Oldsmobile with California license plates in a motel parking lot. Knowing that California is a common source state for drugs, and that the car was of a type favored by drug couriers because it permits the easy hiding of contraband, the policeman grew suspicious. He checked the cat’s registration. He also asked the Drug Enforcement Agency to check the names of the guests in the motel against its database of known and suspected drug traffickers. The search turned up the name of the car’s registered owner and the name of one of the guests.
Finally, after two guests emerged from the motel and entered the Oldsmobile, the officer’s partner approached them and asked if he could search their car. They consented. A third officer, a veteran of over 2,000 narcotics searches of vehicles in the previous nine years, conducted the search. He found a loose panel above the right rear passenger armrest and concluded that drugs were probably hidden there. He dismantled the panel and found two kilograms of cocaine.
Saul and Ismael Ornelas were arrested and convicted. They argued on appeal that the officers lacked probable cause to search their car without a warrant and thus that the cocaine should not have been admissible as evidence at their trial. The federal trial court disagreed. It ruled that the cocaine could be admitted because the officers had reasonable suspicion of drugtrafficking activity, which became probable cause when the officer found the loose panel. The court of appeals, applying the traditional rule that a lower court’s findings are reversed only upon a finding of “clear error,” upheld the admission of the cocaine into evidence.
In an eight-to-one decision, the Supreme Court reversed. It held that the court of appeals applied the wrong standard and that the case would have to be reopened.
In an opinion by Chief Justice Rehnquist, the high court held that the court of appeals should not have reviewed the lower court’s decision deferentially. Instead it was required to conduct its own de novo review of the case — its own brand-new, top-to-bottom examination of the facts. Rehnquist based this broadened application of the exclusionary rule on the principle that “independent appellate review” of important factual issues is essential to the Fourth Amendment and the exclusionary rule. The main effect of the ruling is to give criminals yet another chance to have incriminating evidence excluded — and, consequently, their convictions overturned.
Justice Antonin Scalia filed the lone dissent. He questioned why the court had departed from its longstanding deference to lower courts’ factual determinations. Except in rare circumstances, Scalia noted, “an appellate court never has the benefit of the district court’s intimate familiarity with the details of the case — nor the full benefit of its hearing of the live testimony.”
Scalia condemned the ruling of the nearly unanimous court as “not only wrong but contradictory.” He wrote: “In an apparent effort to reduce the unproductive burden today’s decision imposes upon appellate courts, or perhaps to salvage some of the trial court’s superior familiarity with the facts that it has cast aside, the Court suggests that an appellate court give ‘due weight’ to a trial court’s finding that an officer’s inference of wrongdoing (i.e., his assessment of probable cause to search) was reasonable. The Court cannot have it both ways. The finding of ‘reasonableness’ is precisely what it has told us the appellate court must review de novo; and in de novo review, the ‘weight due’ to a trial court’s finding is zero.”
If Rehnquist’s opinion in Ornelas was “contradictory,” the same cannot be said of the Supreme Court’s straightforward expansion of Miranda rights last year. The Warren court held in Miranda v. Arizona, decided in 1966, that the Fifth Amendment right against selfincrimination also contained another right: It required that policemen — -of all people — inform criminal suspects of their right not to cooperate in investigations. A police officer’s failure to read the suspect his rights once he is in custody means that any confession obtained cannot be used at trial.
Last term, in Thompson v. Keohane, the court not only affirmed Miranda’s dubious and dangerous reasoning; it actually expanded Miranda, much as it did the exclusionary rule in Ornelas. The court considered the appeal of Carl Thompson. In 1986, two moose hunters in Alaska discovered the body of Thompson’s wife, Dixie, in a gravel-pit lake outside Fairbanks. She had been stabbed 29 times, then wrapped in chains and a bedspread and tossed into the pit.
The state troopers investigating the murder did not inform Thompson of his Miranda rights when they called him to police headquarters for questioning. They did, however, tell Thompson repeatedly that he was free to go. And they permitted him to leave at the close of questioning — presumably to avoid any Miranda difficulties — even after he had confessed in a taperecorded interview to murdering his wife. They later arrested him.
The Alaska trial court, after reviewing the facts, held that Thompson was not “in custody” for Miranda purposes when he confessed. Therefore, the troopers were not obliged to inform him of his rights. Thompson was subsequently convicted of murder. His conviction was affirmed by the Alaska court of appeals, the Alaska supreme court, a federal district court, and the Ninth U.S. Circuit Court of Appeals. The two federal courts based their decision on the statute that requires federal judges to presume the correctness of state-court determinations of factual issues.
In a seven-to-two ruling, the Supreme Court reversed the lower courts’ decision. Writing for the majority, Justice Ruth Bader Ginsburg stated that federal courts must not defer to state courts when reviewing “in custody” rulings for Miranda purposes. The high court concluded that “state-court ‘in custody’ determinations warrant independent review” by federal courts. As in the broadening of the exclusionary rule in Ornelas, Thompson decreed that the federal court should review all the facts de novo. Only such a searching inquiry would permit the court to determine whether Thompson was ” in custody” when he confessed and thus whether the confession was properly admitted.
In a sharply worded dissent, Justice Clarence Thomas, joined by Chief Justice Rehnquist, criticized the majority for flouting any semblance of federalism. “I believe,” said Thomas, “that the Alaska trial judge — who first decided this question almost a decade ago — was in a far better position than a federal habeas court to determine whether Thompson was “in custody” for purposes of Miranda v. Arizona.”
He added, “We insult our colleagues in the States when we imply, as we do today, that state judges are not sufficiently competent and reliable to make a decision as straightforward as whether a person was in custody for purposes of Miranda.” It was preferable to defer to the lower-court judges, who were in a “better position” to analyze these matters, “and avoid putting the State of Alaska to the uncertainty and expense of defending for the sixth time in nine years an eminently reasonable judgment secured against a confessed murderer.”
Like the exclusionary rule and Miranda, prisoners’ rights have earned a good measure of popular opprobrium. Few judicial excesses infuriate the public more than unworkable, manufactured rights for convicted criminals in prison; and probably no institution better captures the silliness of this jurisprudence than the law library that the state is required to provide to prisoners. It is there that inmates spend their idle hours cooking up frivolous lawsuits against prison officials, preparing specious appeals of their sentences, and generally making themselves even more obnoxious to society.
Those who thought the Rehnquist court might overturn this requirement, or at least question it, were disappointed last term by Lewis v. Casey. The high court reviewed regulations imposed by federal judge Carl Muecke on Arizona’s prisons. These regulations were adopted on the recommendation of a court-appointed “special master,” whom Judge Muecke had charged with supervising, among other things, the law libraries in the state’s prisons. The special master drew up a 25-page injunction, which the judge approved with only minor changes. The order specified, inter alia, the libraries’ hours of operation, the minimal educational requirements for prison librarians, and even the permissible level of noise.
In an opinion by Justice Scalia, the Supreme Court struck down the lower court’s injunction micromanaging Arizona’s prison law libraries. But the court left untouched the underlying right to such libraries at state expense. It was left to Justice Thomas to remind his fellow justices of just how unwise this Burger-court invention was.
Thomas’s concurring opinion is a back-to-basics lecture on just how far the court has strayed from the text and history of the Constitution. The supposed right of inmates to law libraries goes back only as far as the 1977 case of Bounds v. Smith.
“While the Constitution may guarantee state inmates an opportunity to bring suit to vindicate their federal constitutional rights,” Thomas said, “I find no basis in the Constitution — and Bounds cited none — for the right to have the government finance the endeavor.” He noted that “Bounds forged a right with no basis in precedent or constitutional text: a right to have the State ‘shoulder affirmative obligations’ in the form of law libraries or legal assistance to ensure that prisoners can file meaningful lawsuits.” And yet Scalia’s opinion described Bounds as an “exemplar” of how courts should grapple with the issue of inmate litigation, in supposedly stark contrast to Judge Muecke’s ruling in Lewis.
And what of the chief justice? Thomas could not resist pointing out that Rehnquist, who had opposed the manufacturing of this right in Bounds, now had come around to ratifying it. “The majority opinion in Bounds failed to identify a single provision of the Constitution to support the right created in that case,” wrote Thomas, “a fact that did not go unnoticed in strong dissents by Chief Justice Burger and then-Justice Rehnquist.”
No justice comes out of these three cases with his intellectual reputation entirely unbesmirched. Scalia, for example, gallantly resists the expansion of the exclusionary rule in Ornelas. Yet in Thompson, he signs on to the majority’s expansion of Miranda, and in Lewis he strongly endorses the ludicrous fight to publicly funded prison law libraries. Justice Thomas comes out best of all, dissenting in two of the three. But principled conservatives looking for a champion whose opinions they can consistently cheer must come away from these decisions disillusioned.
The same indictment applies to the Rehnquist court’s overall record on criminals’ rights. It suggests that, at best, even the most hardy justices have given up hope of reversing the ruinous rulings of the Warren court. At worst, the court, marching in the service of the lawyer class, has grown incapable of overturning any of the landmark criminals’ rights rulings, either from an overriding zeal for judicial power or from a broad-based judicial ideology that has grown comfortable with these rights and the social advances they supposedly represent.
Whatever the explanation for these trends, the court is a growing source of bitterness and division, not only for jilted conservatives but for a splintering society. Americans who feel less safe today because of Warren- court rulings now more deeply entrenched than ever may well remember the Rehnquist court not only as the conservative court that never was, but as the triumph of the lawyer class over the rule of law itself.
Andrew Peyton Thomas, a Bradley fellow at the Heritage Foundation, is deputy counsel to the governor of Arizona and the author of Crime and the Sacking of America: The Roots of Chaos.
