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]

32 replies
  1. emptywheel says:

    FWIW, I’m not sure we’ve got evidence that Kagan is corporatist–and this is not an example of it. On the contrary, I’d describe this as more authoritarian, which was my concern in the first place.

  2. jo6pac says:

    liberals will regret it for decades.

    Thanks bmz and emptywheel as a member of the left I think I’ll ask now for a corner room in the local FEMA camp;)

    Sad but true when he does win 2012 and he will then move the court further right to finish off the citizens Main Street.

  3. Tom Allen says:

    But, but, but … SCOTUS! That’s the argument I hear whenever someone tells me not to vote for a leftist third party. Because surely Obama would never appoint bad justices — or even someone who would overturn Roe v. Wade. I mean, it’s not like he caves to Republicans, amirite?

  4. matt carmody says:

    Isn’t there some way we can get Ginsburg’s head preserved in a jar like the talking heads on Futurama?

    I sure didn’t think this country would go so completely down the shitter in a generation.

  5. Shawn says:

    This is a pretty facile explanation of Kagan and her criminal jurisprudence. Unsurprisingly, you don’t seem to realize that Scalia has actually been better than the liberals on the Sixth Amendment. So if she votes with Scalia in the next confrontation case, as she has in the past, that’s actually a good thing. By the way, here was Souter in Bullcoming? But don’t let the facts ruin your narrative.

  6. Jeff Kaye says:

    Liberals have no one but themselves to blame, as liberalism has long been a dead end, with politics subordinate to corrupt electoral practices and, yes, corporatist influence. It has become the handmaiden of conservative interests (while, say, libertarianism is a mere feather-bed for fallen conservatives).

  7. bmaz says:

    @Shawn: Thanks, but I would note that, first off, there is damn little Kagan criminal jurisprudence to date, and the result here and, mostly, in the few others is quite consistent with what I have said and predicted at length when she was nominated and up for confirmation. Further, I have consistently stated, which you would likely not know as this is your first time here that I am aware of, that the one area where Nino Scalia has excelled is on confrontation clause issues. However, Bullcoming itself would seem to indicate that Kagan is not quite as full throated on confrontation clause issues as Scalia (or Ginsburg). Oh, and where was Souter on Bullcoming? He was retired of course. But, as you say, don’t let the facts ruin your narrative.

  8. DWBartoo says:

    Kagan is “performing” exactly as many of us who were very unimpressed with her “history” of doing precious little expected her to perform.

    To go a wee bit OT, bmaz, what do you make of the latest “move” of the Prop 8 Proponents, asking for a rehearing before the Ninth?

    Is it simply a delaying tactic of one sort or another?

    Your thoughts on the matter would be appreciated.


  9. bmaz says:

    @DWBartoo: In a short answer, I think yes to some extent. I think they know they have problems, and it is only getting more bleak for their backwards leaning side. The Perry case was as limited in scope as they could possibly hope for, and they still did not want to just go now to the Supreme Court. To me, that evidences very telltale weakness. Between the 9th Circuit Perry Decision and today, two more states have gone all in for marriage equality, and a third (NJ) did and was prevented only by a neanderthal governor veto; that has to be sobering to them. This is exactly why I have lambasted those who are trembling with caution and want to wait until “society catches up” to move to the Supreme Court on the true Constitutional issues at play. The time and momentum is now. I think even the H8ters know this and are just dragging the inevitable out. There is zero chance of them getting a more favorable ruling out of the 9th Circuit en banc, and at least some, even if not huge, chance they get the decision expanded back to where Vaughn Walker had it. That would be a remarkable blow.

    The best the H8ters can rationally expect is to come out of an en banc exactly where they are. That means they are delaying. It also means they know what I have been saying from the day Perry was filed, Kennedy is ready to go the way of marriage equality.

  10. DWBartoo says:


    You confirm my thoughts or, more properly, my suspicions, bmaz, thank you.

    This “maneuver” is, simply, an act of desperation if not of fear.

    The time and the momentum is now.

    I suspect that this move is simply an attempt to slow down the journey of this case to the Supremes …

    Yes, the “incremental approach, in this instance and in many others is both cruel and cowardly.

    Genuine change is needful now … it may be delayed, however it shall not be, for much longer, denied.

    Again, much appreciation.


  11. thatvisionthing says:

    What? Oh, I keep thinking of V:

    V: What was done to me created me. It’s a basic principle of the universe that every action will create an equal and opposing reaction.
    Evey: Is that how you see it? Like an equation?
    V: What was done to me was monstrous.
    Evey: And they created a monster.

    The darker the night, the brighter the concerto to Madame Justice: http://www.youtube.com/watch?v=SlU1HLkdmNk

    V: How beautiful! Is it not?

    Or maybe I’m thinking of “Who could have foreseen?”

  12. Saje Williams says:

    @Jeff Kaye: Don’t confuse the rank and file liberals with the Democratic Party and the ‘Liberal’ establishment. One of the reasons some people have adopted the “progressive” label isn’t necessarily in reaction to the poisoning of the word by the right wing for the past couple generations, but instead a way to separate true forward-thinking, liberal minded folks from the path-of-least-resistance Democratic establishment.

  13. Jon Shields says:

    Bmaz, I agree that this is not a good decision. But I’m not sure its any kind of sign about the future. Breyer, Ginsburg, and Sotomayor have all occasionally joined conservatives in making anti-defendant 6-3 decisions. In fact, just today, Kagan joined in a 3 person dissent to a summary reversal of a circuit court ruling throwing out a criminal conviction. Sotomayor was the one who didn’t join — and I don’t think anyone is arguing that she’s not a liberal.

    The truth is that while the decision is bad, I don’t think it is particularly broad or particularly predictive of future decisions.

  14. GKJames says:

    This highlights why having justices without state-court criminal trial experience doesn’t serve the republic well. Invariably, we get people with origins in academia or white-shoe law firms. This means that the experience in blood-and-guts criminal work in state courts — venues where trial judges’ holding the State to its Fourth, Fifth, and Sixth Amendment obligations is daily fare — is entirely missing at the Supreme Court.

  15. earlofhuntingdon says:

    Jeopardy certainly attaches when being questioned, so the rights Miranda explained should attach. That is, unless police authorities are prohibited from using the results of that questioning against the person being questioned. In today’s climate, that police and their surveillance, their drones and tasers can do no wrong, that seems an unlikely prohibition in fact or policy.

    Ms. Kagan disagrees with the premise that jeopardy ensues from such questioning and that the rights of the person being interrogated should be protected. As bmaz says, that implies that Ms. Kagan believes that the police can do no wrong, which would make her an authoritarian, a troubling personality to have on the Court during an era of unprecedented assaults on personal liberty by those charged with protecting it. The same description applies to Mr. Obama, which makes his “democratic” moniker, with a large or small “d”, another lie.

  16. jazzguyal says:

    Anyone thinking themselves to be of liberal intent are about as screwed as we can get. If we say anything negative about our President the attack Dems come out of the woodwork like termites to savage any one not lined up fully behind our President. The actual facts don’t matter at all, it is all about denying our President has done anything wrong in any fashion, ever. Kagan wouldn’t vote with the RW extremists. Miranda, who cares? Damn criminals. Gitmo, git mo’ yourself. Health Care Reform, how about manditory health insurance? NDAA, put a target on your chest. Banks, well, we don’t want to interfere with the ‘Recovery’ He has done much good but equally much bad. I guess that makes him a ‘middle of the road’ President.

  17. P J Evans says:

    Yeah, the DNC and its buddies at the DCCC and the DSCC are all running that argument. It might have worked better on a lot of us if we hadn’t spent the last decade watching the Ds lie down every time the GOP said boo. Clutching their pearls, too, while they did it.

    I’d like an actual liberal/progressive party to join. There doesn’t seem to be one available in my state.

  18. Peterr says:

    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.

    I wonder if Ginsburg is thinking along these same lines after today’s decision. If so, it might encourage her to try to stick it out until 2016.

  19. thatsdrfreak says:

    My justification for continuing to vote for the DINO clowns has been, “It’s the Supreme Court, Stupid!” But even our Supreme Court nominees turn out to be a disappointment.

  20. Bob Schacht says:

    @jazzguyal: The important thing for progressives is to push back against the Clintonian moderates, focusing on issues, not personalities. The fate of our country depends on pushing back against reactionary policies everywhere we can, rather than merely complaining to other like-minded progressives.

    Bob in AZ

  21. orionATL says:

    harvard law –

    where conservatives go to get certified to rule us

    and to judge (149 sittfederaldera judges and 6 of 9 sitting supreme court justices).

    harvard law -a part of what’s wrong with america.

  22. bmaz says:

    @orionATL: It really is a problem when the primacy of judicial thought is the product of only one school and restricted educational process. It is really kind of scandalous in a way, and the lack of diversity of educational thought process is rarely discussed. It should be.

  23. Paul Ruschmann says:

    One of the few airballs Nate Silver ever threw up on his FiveThirtyEight blog was his “Value Over Replacement Justice” post about Obama’s Supreme Court appointments. He should have looked the other way and focused on “Value Over Predecessor Justice” which, in Kagan’s case, is negative.

  24. bmaz says:

    @Paul Ruschmann: Jeebus, I must have missed that bit of joy from Nate. May have to go find it just for grins.

    And, Paul, I don’t think I have seen you here before, Welcome! Please join in often, it is a good group and new voices only add to it.

  25. orionATL says:


    “it really is scandalous in a way.”

    precisely my thought.

    how do you get the diversity of life experience and political experience that a supreme court justice needs to judge well for our society – the expeiences, say, of a william o. douglas or a sandra day o’connor?

  26. shpilk says:

    While I like the lower case on the ‘democratic’, I’d go a bit further and say “No appointee to Supreme Court should ever vote to further erode Miranda”.

  27. bmaz says:

    @shpilk: Well, I completely agree with that. But it is especially pernicious, and much less expected, from a nominee putatively from the left and a putatively liberal President.

  28. orionATL says:

    my intuitive, i.e., uninformed, thought at the time of the kegan appointment was that she was put there to replace roberts, should that ever be possible.

    who better to represent, in the supreme court, the guiding obama philosophy of “all this nation needs is more oiliness on the waters” than former univ of chicago law school prof and harvard law school dean, elena kagan.

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