Bork and Miranda: distorting precedent to overrule it

ROBERT BORK is not likely to overrule landmark decisions on individual rights. He will not do the things liberals decry and conservatives deny. Why? Because President Reagan's nominee to the Supreme Court knows how to strip such precedents of their constitutional cloak without reversing them. Like Machiavelli's prince, he realizes the importance of appearances. Perhaps the best evidence of Mr. Bork's constitutional style is a 1974 Supreme Court amicus brief he filed as solicitor general. The adroitly crafted brief is a prime example of how a resourceful advocate can dazzle his way through the law to obtain a desired result. At stake was the future of the Warren court's most celebrated criminal-justice decision, Miranda v. Arizona (1966).

The Miranda rule, whereby suspects are informed of their rights and allowed to consult with counsel, had long been an anathema to Richard Nixon. As early as June 1969 Attorney General John Mitchell had instructed the Justice Department on how to test the scope of the highly controversial decision. Next came legislative proposals. Then in the early 1970s the Supreme Court, recently restaffed with four Nixon appointees, chipped away at the Miranda edifice. Still, the efforts were not enough to satisfy the Nixon administration.

The constitutional turning point came in 1974 when Justice William Rehnquist wrote for the court in Michigan v. Tucker. The case involved the legality of evidence derived from a confession obtained in violation of the Miranda rule. At issue: Could the fruit of ill-gotten evidence be used against one accused? When the decision came down, Mr. Rehnquist focused on redefining Miranda's message. In doing so, he was heavily influenced and aided by the constitutional handiwork tendered by Mr. Nixon's astute solicitor general, Robert Bork.

Rehnquist's Tucker opinion pulled the constitutional rug out from under the famous Warren court ruling. More than any other attack on Miranda, it has the long-range potential substantially to undermine it. A future court hostile to the decision would no doubt build on the ideas submitted by Bork and sealed by Rehnquist.

The Bork brief and the Rehnquist opinion basically argued that the Miranda rule was not of constitutional stature. Rather, the solicitor argued and the justice echoed, the Warren court mandate was no more than a ``prophylactic procedural rule.'' A Miranda violation, the Bork brief continued, ``is merely a technical one,'' as contrasted with a ``constitutional one.'' According to Yale Kamisar, a University of Michigan law professor, ``both the brief and the opinion drive a wedge between Miranda and the Constitution.'' Incredibly, the assault on Miranda was done on the pretense of interpreting it.

The stratagem employed to subvert the seminal ruling was to seize on the opinion itself, to dismantle it. Thus, the solicitor general argued: ``We do not believe that the court intended that the requirements enunciated in Miranda to be ... indispensable.'' Rehnquist quoted from Miranda wherein the chief justice said, ``We cannot say that the Constitution necessarily requires adherence to any particular solution....'' In other words, Miranda was now no more than a ``technical rule'' that could be dispensed with at the whim of the justices.

The distinction Bork and Rehnquist drew between constitutional violations and ``technical'' ones was, however, based on a half-truth. What neither of them stressed was the passage in Miranda wherein Warren addressed the issue of such distinctions: ``unless we are shown other procedures which are as least as effective in apprising accused persons of their rights..., the [warning requirement] must be observed.'' Later in his opinion he repeated the point. Of course, Warren's declarations, which were conveniently overlooked by Bork and Rehnquist, were something of a tautology, since the only way to notify a person is to notify him.

What is most distressing is the method Bork employed (or allowed for) to achieve his glorious victory. After all, as solicitor general, Thurgood Marshall, now a liberal justice, also opposed what became the Miranda rule. But in doing so he did not distort precedent to overrule it. As Professor Kamisar observes, ``The Solicitor General's brief reveals the kind of advocacy that purports to honor landmark opinions but recasts them so drastically as to suck the blood out of them.''

What Bork the solicitor general did in the Miranda context can be replicated by Bork the justice in other areas as well, ranging from privacy to rights of free speech. In the end, there is little difference between downgrading such rights and destroying them.

Ronald Collins is a visiting professor of law at Syracuse University in New York and is the editor of ``Constitutional Government in America.''

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