<em>Miranda</em>'s Mistake

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar.

Reactions to Miranda have always divided along ideological lines, with the right arguing that it handcuffs the police, and the left arguing that it offers needed protection to otherwise helpless suspects. For the past generation, Miranda, the exclusionary rule, and the death penalty have formed the criminal justice system's trilogy of ideological markers, issues that separated the true believers of one side from the true believers of the other. To be sure, the left's embrace of Miranda has always been half-hearted, tinged with disappointment that Earl Warren's opinion did not go farther and ban uncounseled questioning altogether. But whenever Miranda has been seriously challenged, those who believe in protecting criminal suspects' interests have rallied to its defense, on the Court and in the law reviews.

The success of that defense in Dickerson - written by the Chief Justice, no less - seems to show that, in this area at least, the left has won the day, leaving the right carping from the sidelines.