"Power-Judging" in the Supreme Court

By Thomas L. Jipping
web posted July 10, 2000

The Supreme Court has firmly established itself as the most powerful force in America today. Not only has it reaffirmed its power to regulate absolutely everything in sight, but to do so not only in the name of the Constitution, but in its own name as well. This goes beyond the scary notion that the Constitution is whatever the judges say it is. It is what Justice Antonin Scalia calls simply "power-judging."

Whether on television or in person, we have all heard cops read people their rights. What most Americans do not know is that it was the Supreme Court that required cops to go through this little exercise. The Court said in 1966 that no statement by a criminal suspect is voluntary unless the cop goes through this little ritual. That's a big deal because involuntary statements are not admissible in court. So whether a guilty criminal gets convicted could turn, not on evidence of his guilt, but on whether a cop read the right words from the right index card at the right time. Two problems are immediately obvious. First, it's easy to imagine many situations where a suspect's statements or confession are completely voluntary with or without these little warnings. Example: A police officer who has himself read those warnings a thousand times gets busted and confesses. It's just dumb to say he does not know his rights until another cop reads to him the very same words he knows so well he says them in his sleep.

The other, and bigger, problem with this requirement is that it's not in the Constitution. This was the Supreme Court's rule, not the Constitution's rule. In fact, the Supreme Court has said over and over that these so-called "Miranda" warnings are a prophylactic rule, designed to support or enforce the Constitution's Fifth Amendment protection against self-incrimination but not required by the Constitution itself. Another example would be the exclusionary rule, which keeps out of court evidence obtained in violation of the Fourth Amendment. The Court created the exclusionary rule supposedly to support or enforce the Fourth Amendment's ban on unreasonable searches and seizures. But these are the Court's rules, not the Constitution's rules.

Here's the big issue: How can the Supreme Court strike down statutes, dictate police practices, and rearrange the rules for criminal trials for any reason other than it's what the Constitution requires? Where does the Court get the authority to make us conform to anything other than the Constitution? I thought we, the people, had the power to govern ourselves subject only to the limitations of the Constitution.

The Dickerson case did not just suggest to the Court that its Miranda decision was wrong. In 1968, Congress passed a statute intending to change the rules about statements and confessions by suspects back to what they were before Miranda. Involuntary confessions would still be inadmissible in court, but whether statements were voluntary could be proved in a variety of ways including whether the suspect had been read their rights. The focus was on the Constitution's rule of voluntariness, not the Court's rule that exalted form over substance. The question was whether the Court's Miranda decision or Congress' statute would prevail.

By a 7-2 vote, the Supreme Court said that Congress could not change the Miranda rule. That the Court would strike down a statute is not by itself so earth-shaking, but that's only supposed to happen when a statute conflicts with the Constitution. Here, the statute conflicted only with the Court, not with the Constitution. This goes beyond the garden-variety judicial activism we have practically come to accept, by which judges say they not only can strike down what conflicts with the Constitution but that they can make the Constitution mean anything they wish. Even though that is far more power than America's founders thought the courts should have, at least those activist judges pretend to speak in the name of the Constitution. As if that power were not enough (and it's practically all the power available), here the Court says it does not even need the Constitution to run the country. It can do so in its own name.

Justice Antonin Scalia wrote in dissent that this is "an immense and frightening antidemocratic power, and it does not exist." He's right. America's founders thought the judiciary would be the weakest and least dangerous branch. That's because judges' power would not only be limited by the Constitution, but the Constitution would be limited by those who wrote it. The power the Court now claims is its own invention. The power to strike down a law that does not violate the Constitution, in Justice Scalia's words, "flagrantly offends fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the representatives of the people." It turns the Court into "some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits of offends its collective fancy." What Justice Scalia called a "boundless doctrine of judicial empowerment" is, in his simple word, "lawless."

The Court is like Darth Vader in the original "Star Wars" movie, confronting the Constitution as Vader confronted his old teacher Obi-Wan Kenobi. Vader said "the circle is now complete," that he, once the student, had finally become the master. The Supreme Court was once the student of the Constitution, content only to apply it as it was written. As its lust for power grew, however, the Court eventually claimed the power not only to apply the Constitution, but to determine what the Constitution means. Now the Court has left the Constitution behind altogether, claiming the power to run our lives based on its authority alone. As Justice Scalia wrote, "This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people." The circle is complete, the student has now become the master. The price is our freedom.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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