Elena Kagan Votes With Alito and Thomas To Undermine Miranda

When Elena Kagan was nominated, there were very few of us voicing strenuous objection, one of the primary reasons I did was her complete lack of experience in the adversarial system, especially with her total lack of knowledge and interest in criminal process issues, which would be critical in the face of the Obama DOJ’s determination to further gut Miranda.

The feared Kagan chickens have come home to roost. The Supreme Court just announced its decision in Howes v. Fields, and the decision is a significant further erosion of the critical Constitutional protections embodied in Miranda. The ruling specifically holds that police are not automatically required to tell prisoners of their legal right to remain silent and have an attorney present when being questioned in prison about another crime.

Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Stephen Breyer dissented. Noting that Fields was only incarcerated for disorderly conduct in the first place, Ginsburg stated:

For the reasons stated, I would hold that the “incommunicado interrogation [of Fields] in a police-dominated atmosphere,” id., at 445, without informing him of his rights, dishonored the Fifth Amendment privilege Miranda was designed to safeguard.

Notice who did NOT side with her fellow “liberal bloc” Justices to honor and protect Miranda? Elena Kagan. No, Kagan instead sided completely with Clarence Thomas, Samuel Alito and the rest of the conservative bloc.

No democratic appointee to Supreme Court should ever vote to further erode Miranda, and this case did exactly that in a fundamental way. But Barack Obama gave us the authoritarian Elena Kagan who, predictably, did just that. As a prediction: you will be seeing a lot more of Elena Kagan voting with Alito, Scalia and Thomas on crucial law and order/criminal process, not to mention evidentiary, issues. Get used to it.

Oh, and as a reminder, Obama may soon enough have the opportunity to further shove the ideological spectrum of the Supreme Court substantially to the right, just as he did when he replaced John Paul Stevens with Kagan. If Obama replaces the liberal stalwart Ruth Bader Ginsburg with another mushy authoritarian and/or corporatist centrist, like he did in replacing Stevens, liberals will regret it for decades.

Judicial policy matters.

[updated slightly to reflect authoritarian as a descriptor for Kagan, which, as EW points out, is more germane to this discussion on Howes]

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32 Responses to Elena Kagan Votes With Alito and Thomas To Undermine Miranda

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Emptywheel Twitterverse
emptywheel We can only aspire at this point. RT @bmaz: @SchuetteOnDuty Someday, your state too can be as enlightened as Arizona.
5mreplyretweetfavorite
bmaz @McBlondeLand @OscarPistorius @reevasteenkamp That's going to work out to about 10 months in prison, the rest on house arrest.
6mreplyretweetfavorite
bmaz @emptywheel @MonaHol @SchuetteOnDuty Someday, your state too can be as enlightened as Arizona.
8mreplyretweetfavorite
emptywheel @amk44139 No. They already posted. No decision.
22mreplyretweetfavorite
emptywheel @MonaHol It's like @SchuetteOnDuty WANTS Michiagnders to be backassward troglodytes or something.
23mreplyretweetfavorite
emptywheel Hey @SchuetteOnDuty! These states are not ones MI should be happy company with. http://t.co/gy8mRPrlT3
27mreplyretweetfavorite
emptywheel @4Dgifts And then the corporate sector peed its collective pants and they put it in an Agency w/o the expertise, right? @csoghoian
32mreplyretweetfavorite
emptywheel Aw cmon, 6th Circuit, you're telling me WY got marriage equality before MI?
33mreplyretweetfavorite
emptywheel @csoghoian Maybe FTC should be in charge of cybersecurity then? Or too much expertise?
51mreplyretweetfavorite
JimWhiteGNV With SharkNado 3 set in DC, I'm pretty sure the highlight will be a shark repossessing its heart that was stolen for Cheney's transplant.
52mreplyretweetfavorite
bmaz @stephenlemons @yvonnewingett @charrisazrep @GovBrewer Yes, it really is a great article. And a telling and despicable move by Brewer
58mreplyretweetfavorite
emptywheel @ashk4n Congrats! But the WaPo will miss your great contribution.
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February 2012
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