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Supreme Court Overrules Michigan v. Jackson:
With everyone thinking about the Supreme Court of the future this morning, I want to point out that there is also a current Court that is still in session. Yes, it's true! Indeed, today's Court handed down a big decision today in the criminal procedure area: In Montejo v. Louisiana, the Supreme Court overruled Michigan v. Jackson, a Miranda decision that has long been a controversial case. The vote was a predictable 5-4. There's lots to talk about with Montejo, although with all the Sotomayor news, it's not clear how much attention it will receive in the legal blogosphere. I'll try to have some commentary on it soon.
pubdefender:
Orin -

Is it accurate to call Michigan v. Jackson a Miranda decision? Don't want to quibble needlessly, but seems like it's important to keep 5th and 6th amendment issues/questions/concerns as distinct as possible in this area (and especially given the scope/purpose of the remand in Montejo), just for the sake of clarity.
5.26.2009 11:53am
Anon321:
Boy, Alito really, really doesn't like Arizona v. Gant, huh?
5.26.2009 11:55am
Realist Liberal:
Anon321~

I was thinking the same thing. I'm also somewhat surprised that Kennedy signed onto that concurrence. He's usually pretty big on respecting recent decisions.

Of course, I say that as someone who took the same approach as Breyer, Belton may not be ideal but it was the best option and Gant is just going to cause a lot of problems (ok enough thread tangents for me).
5.26.2009 12:01pm
Anonymous1:
Prof. Kerr,

It's been a while since I've had criminal procedure, but it seems to me that this decision doesn't square with Massiah v. United States. There's no discussion of Massiah in the opinion, though it is cited. Is there something I'm missing?

I know Rehnquist's dissent in Michigan v. Jackson distinguished Massiah on the grounds that "the nature of the police conduct was such that it would have been impossible to find a valid waiver of the defendant's Sixth Amendment right to counsel," but I've never known the Court itself to have adopted that reading of Massiah.
5.26.2009 12:25pm
cmugirl (mail):
According to SCOTUSblog, the current administration also argued for this to be overturned.

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime. The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers. Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

5.26.2009 12:25pm
mls (www):
Did I get this wrong, or does Alito's concurrence suggest that because Gant ignored stare decisis, stare decisis now requires ignoring stare decisis (or something like that)?
5.26.2009 12:26pm
RPT (mail):
Is this an "activist" decision, a "conservative" decision, a "change unwise policy" decision, or something else?
5.26.2009 12:34pm
Specast:
Alito's "concurrence" was unusually snotty, wasn't it? It wasn't really a concurrence: he didn't give a justification that was different or more limited than the one offered in the majority opinion. Alito just wrote to stick it to 3 of the 4 dissenters.

While his point was a valid one, writing a separate occurence to make it and, worse, writing in such a personal and aggressive fashion was poor form. Remember this when, in the coming weeks, you hear questions raised about Sonia Sotomayor's judicial temperment.

Perhaps there's not much danger of Alito isolating himself because of it; Souter's leaving, and Stevens and Ginsburg are probably not staying too long.

I don't know what to make of Kennedy joining that concurrence. Seems out of character. Maybe Anon321 is right: maybe he and Alito are just really, really pissed off about Gant.
5.26.2009 12:34pm
Kenvee:
mls, I think it's more pointing out hypocrisy in today's dissent. "You think that it's so vital to uphold this case today, but you overruled another case this very term with the exact same reasons in favor of keeping it." Not stare decisis so much as consistency among the exact same people.

I'm curious how this will affect Rothgery, which has been causing headaches in Texas.
5.26.2009 12:36pm
Steven Lubet (mail):
Said Justice Scalia, writing for the majority:


Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well rea-soned.


Two of the four considerations -- workability and reliance interests -- seem to call for the exercise of empathy. There is no metric in the constitution that will help a judge to determine either a rule's "workability" or the extent of "reliance." They have to figure that out by looking at the consequences of the ruling, and considering it from the viewpoints of others.

Just sayin'.
5.26.2009 12:39pm
GV:
Kenvee, if Alito is right, and the dissenters are being hypocrites, then it Alito himself is admitting to being a hypocrite as well. I'm not sure it makes sense to say that because someone else is being a hypocrite, I'm going to be a hypocrite too. That's, like, being a meta-hypocrite. Count me in among the many who is baffled by Alito's concurrence.
5.26.2009 12:46pm
Volokh Groupie:
@Steven

I'm fairly sure that whether the decision was well reasoned would be the most important criteria and the presiding one.
5.26.2009 12:48pm
BRM:
Did Gant actually overrule Belton? My impression is that Scalia concurred on the grounds that Belton should be overruled, but that a majority of the Court in Gant did not explicitly overrule Belton. Justice Stevens says as much in his footnote 5 (that Breyer did not join).
5.26.2009 1:01pm
BRM:
It seems especially odd for Alito to cite Scalia's Gant concurrence for the proposition that Gant overruled Belton, when that issue was what prompted Scalia to concur separately in the first place.
5.26.2009 1:02pm
DJ12 (mail):
...hope you don't forget about this topic. I always come here looking for some plain explanations as to what things might mean (I don't have a legal background but I find the law fascinating). I'm just completely surprised to find almost nothing on this topic. HELP!!! If I'm reading it correctly, do I assume that we can kiss goodbye forever the ever popular crime show series based on ' I know my rights! an' I'm ain't sayin' nothin' ta anybody 'till my attorney gets here' :)
5.26.2009 2:46pm
Kenvee:
DJ12, that rule's still in place. Basically, the Court just said that there's a difference between "yes, please, I would like to have an attorney for trial" and "no, I'm not talking to the police without an attorney." Under the old rule, someone who requested an attorney at an arraignment (a pretty formulistic event that was the main chance for someone to get an appointed attorney if they EVER wanted one) was automatically deemed to have decided he didn't want to talk to the police either. Under the new rule, the police are still allowed to ask you if you want to talk to them. If you say no, then they can't keep pressuring you to. But you have to actually say it first, not just check a "I want an attorney" box on a form or something.
5.26.2009 3:40pm
Cobra (mail) (www):
Did you read Scalia, Kenvee?

"Because of the protections created by this court in Miranda and related cases, there is little if any chance that a defendant will be badgered into waiving his right to have counsel present during interrogation," Scalia said.


Come on. This is simply another license for 6th Amendment police abuse, and prey on the slow-witted, under-educated, and people unaware of their Constitutional rights when being stopped,questioned and arrested by police, who don't always operate under altruistic motives. It's another strike against Urban Americans (mostly minorities) by the four White conservative male justices and Clarence Thomas.

I can easily see how a Latina born in a South Bronx housing project who worked under NYC DA Robert Morgenthau could add much needed perspective on this issue.

--Cobra
5.26.2009 11:01pm
David M. Nieporent (www):
Cobra apparently thinks "Urban Americans (mostly minorites)" are "slow-witted."

They'd have to be very very very "slow-witted" to be "unaware of their Constitutional rights," however, since the police are still required under Miranda to inform them of those rights before interrogating them. (They'd also have to be so poor that they can't afford a television, and so unpopular that they have no friends with televisions, since everyone who watches television is aware of his or her rights; every American -- okay, except Amish people -- has heard the Miranda warnings hundreds or thousands of times in his/her life.)
5.27.2009 6:15am
Cobra (mail) (www):
David writes:

"They'd have to be very very very "slow-witted" to be "unaware of their Constitutional rights,"

You really want to sign your name to that one, considering the state of civics education in America?

--Cobra
5.27.2009 7:57am

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