Scalia Legislates from the Bench

Posted in Case Reports by Mike Sacks on February 24, 2010

Today’s opinion in Maryland v. Shatzer holds that

Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.

Seems equitable enough until one notices that Justice Scalia, writing for the Court, actually codified that specific number–14 days–as the bright-line expiry date of Miranda rights.

Isn’t this the very kind of specificity that conservative advocates claim made illegitimate Miranda‘s mandated “you have the right to remain silent” speech and Roe‘s trimester framework?  In other words, shouldn’t Scalia himself have claimed that his 14-day limitation was better left to legislative judgment after extensive findings?  Or are Miranda cases different because the Court created and occupied the field four decades ago?

Justice Thomas caught this inconsistency and called the Court out (citations omitted):

This ipse dixit does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the “closest possible fit” with the Self-Incrimination Clause.  Nor does it explain how the benefits of a prophylactic 14-day rule (either on its own terms or compared with other possible rules) “outweigh its costs” (which would include the loss of law enforcement information as well as the exclusion of confessions that are in fact voluntary).
To be sure, the Court’s rule has the benefit of providing a bright line.  But bright-line rules are not necessary to prevent Fifth Amendment violations, as the Court has made clear when refusing to adopt such rules in cases involving other Miranda rights. And an otherwise arbitrary rule is not justifiable merely because it gives clear instruction to law enforcement officers.
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