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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Emptywheel Twitterverse
bmaz @walterwkatz @mtracey @kgosztola Even McCulloch would be better served if he was replaced, but understand why he doesn't voluntarily recuse
9mreplyretweetfavorite
bmaz @walterwkatz @mtracey @kgosztola ie I'd at least think about letting him testify to GJ. But wouldn't let him chat w/prosecutor at this point
11mreplyretweetfavorite
bmaz @walterwkatz @mtracey @kgosztola Not nearly enough info to have opinion on that. If he struck me as a really good witness, Id think about it
12mreplyretweetfavorite
bmaz @walterwkatz @mtracey @kgosztola I have real issue wi appearance of bias/distrust of McCulloch, think he should be bounced but timing fine.
19mreplyretweetfavorite
bmaz @walterwkatz @mtracey @kgosztola Yep, pretty familiar w/Garrity statements; but that is one thing, forced chatting w/prosecutor quite anothr
20mreplyretweetfavorite
bmaz @MasaccioFDL No, he made a full statement to investigators; cooperating w/prosecutor is not only not grounds for firing, it is fairly normal
23mreplyretweetfavorite
bmaz @walterwkatz @mtracey @kgosztola Anybody but a cop, and defendant is indicted already; but given it is a cop, the time frame is not that off
34mreplyretweetfavorite
bmaz @walterwkatz @mtracey @kgosztola Right. Wilson has a police union/PBA lawyer, there is a protocol for this. Even in Ferguson.
38mreplyretweetfavorite
bmaz RT @walterwkatz: @bmaz @mtracey @kgosztola they could have obtained med records with a search warrant but subpoena now is more likely. No i…
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bmaz @MasaccioFDL Would depend on a lot of factors, but my inclination is I would not let him be chatted up by prosecutor.
43mreplyretweetfavorite
bmaz @MasaccioFDL Wilson was interviewed for and participated in the departmental report; his job doesn't hinge on talking to prosecutor.
44mreplyretweetfavorite
bmaz @carwinb And I was sure the Vulcan response was a winner....
1hreplyretweetfavorite
February 2012
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