Robert Campana
POSC-130: Law, Politics, and
Public Policy
POSC-130 is a General Education class that delves into the inherent tension between law and
politics. Throughout the course, difficult questions are posed to students, who then independently
sift through thousands of pages of research seeking the apparent balance between the
adversarial legal system of the United States government and the dynamism of its courts. Such
questions as “what is the rule of law?”, “does the law serve power or justice?”, “what influences
outcomes in civli and criminal justice?”, when do people deserve punishment or deserve to be
held “liable for their negligent conduct?”, and “how broad is ‘freedom of speech’?” are posed to
students who grasp their own understanding of the topics throughout the course.
This paper is the term paper for the class composed by Robert Campana exploring the tendency
of the United States Supreme Court to be either dynamic or constrained by the other branches of
the US Government. Robert chose to explore the constraints of the courts through analysis of the
case Dickerson v. United States (2000) and associated relevant cases, commentaries, briefs,
and lectures.
University of Southern California
T (805) 216-9770
Robert Campana © 2008
rcampana@usc.edu
Robert Campana
Thursday: 3:30-4:20pm
POSC 130g: Law, Politics, and Public Policy
Professor Barnes
Roozbeh Baker
Dickerson v. United States; The Dynamic and Constrained Court Perspectives
2
As the famous song by Snap! goes, “I’ve got the power!” But who has the power in the
United States Government? Which branch-- judicial, legislative, or executive-- overrules the
other and to what extent? This issue refers to a balance of power that is often difficult to
interpret. In the case Dickerson v. United States (2000)1, the United States Supreme Court was
faced with that dilemma as a central issue. Does Congress have the power to establish a law that
runs directly counter a recently established ruling from the Supreme Court? This is a complicated
issue that necessitates the use of various outlooks. One can view the abilities, actions, and
decisions of the court in a constrained or dynamic perspective in relation to doctrinal,
institutional, and cultural constraints. In the case Dickerson v. United States2, the United States
Supreme Court ruled in such a fashion that clearly demonstrates that the courts are dynamic in
nature, capable of superseding doctrinal, institutional, and cultural constraints in order to uphold
the ruling as they see fit.
In order to understand the judicial dynamism that occurred in the Supreme Court’s ruling,
one must first comprehend the distinctive types of limitations faced therein. The three chief types
of constraints are considered to be doctrinal, institutional, and cultural. These three constraints
are applied in order to interpret the courts as either constrained or dynamic. The Constrained
Court View (herein referred to as the CCV) deems that courts are generally limited in their
ability to act 3, while the Dynamic Court View (herein referred to as the DCV) holds that court
are typically liberated from constraints4.
A doctrinal constraint is the belief that the courts are limited (or subsequently enabled)
actors due to the confines created by legal texts, rules, and regulations. The CCV holds that
courts are limited in their ability to act due to socially constructed laws that are interpreted over
3
time by culture and society. This leaves the courts little room to enact independent decisions due
to not only the legal limitations of the courts, but also the past rulings, legal limitations on
judicial review and action, interpretations of the law, etc. This is contrasted by the DCV that
doctrine has a very weak constraint on the courts due to the ambiguous nature of many laws.
This obscurity would enable the courts to obtain more active roles in the area of public policy
and as interpreters (and to a degree, creators) of the law5.
Institutional constraints stem from the structure of the courts. Institutional constraints can
be viewed as either internal (passivity of the courts) or external (the appointment process). The
CCV would view the passivity of the courts, or the inability of courts to bring up issues, as a key
internal institutional constraint. The DCV comprehends that the courts are not able to bring cases
to fruition. Nevertheless, this perspective holds that since there are ample cases, as well as
entrepreneurial lawyers who actively seek new cases, the courts are enabled to “pick and choose”
whatever case, and thus issue, they decide to clarify. The fact that there are over 750,000
lawyers, coupled with the numerous and prevalent lawsuits that define the American legal
system, leads this perspective to the conclusion that the courts are dynamic and influential
creators of law. External institutional constraints in the CCV are considered to be the
appointment process (inability of the courts to pick their actors whom are rather chosen by
political figures) and the ability of their decisions to be overridden (nullified). The DCV views
this constraint as weak. It holds that while judges are appointed politically, actors in the court are
appointed for life and have a very limited removal process. This enables them to act without
political ties and in the interest of upholding the law 6.
4
Lastly, cultural constraints are considered to be the limitations on the court due to their
necessity of public approval and support. The CCV believes that cultural constraints are strong as
the courts lack the power of the sword and the purse (or the monetary and enforcement backings
needed to enforce rulings). Therefore, courts must make rulings that are socially acceptable in
order for them to stand. The DCV holds that cultural constraints are weak given the broad
dynamism of the “American Creed.” The DCV believes that America has no clearly defined
culture, and therefore, the courts are left to dictate the norms of society. The core metaphor, or
central theme, of the CCV is that courts are agents of the law, who serve their political masters,
and who are primarily secondary actors. The DCV’s core metaphor is that the three branches,
judicial, legislative, and executive, are independent sources of power who work together in order
to ensure the upholding of the checks and balances that are central to the US Constitution7. These
perspectives and constraints, thus, can be investigated in relation to the United States v.
Dickerson8 case (herein referred to as Dickerson) to better understand how the courts are far
more dynamic than constrained.
The Dickerson case takes into a large account, the rulings of Miranda v. Arizona9 and the
subsequent law that Congress enacted in its response, the 1968 Omnibus Crime Control and Safe
Streets Act of 196810. The Miranda case was the most hotly disputed Supreme Case ruling in
American history 11, save perhaps Bush v. Gore12. Its ruling established the now well known
Miranda Rights which state that a person must be informed of his or her rights prior to
questioning if those statements are to be used in court (other than for impeachment of the
defendant)13. In the language of the Court, a person must have “the use of procedural safeguards
effective to secure the privilege against self incrimination”14. This ruling stemmed from the 5th
5
Amendment of the Bill of Rights which states that any person shall not be “compelled in any
criminal case to be a witness against himself”15. Congress, however, did not see this ruling as
constitutional, and thus passed the PL90-351 part of the 1968 passage of 18 U.S.C. 3501 (herein
referred to as 3501)16 that stated that a confession “shall be admissible in evidence if it is
voluntarily given”17 . Thus, Congress acted deliberately and actively against the Supreme Court
ruling, and thereby, the Dickerson case came to fruition—to decide which law would govern the
United States, thereby deciding which institution (judicial or legislative) has the power to
overrule the other.
The facts of the Dickerson case show that Charles T. Dickerson (defendant) made
statements, under interrogation, that were in violation of Miranda. Dickerson argued that his
statements should be suppressed as a clear violation of Miranda, while prosecutors for the United
States argued that the confessions were voluntary, and thus admissible under 3501. A central
issue that ran throughout the case is whether Miranda was a constitutional ruling, thus being
immune from Congressional overrides, or a ruling that was not constitutionally grounded, which
would enable Congress to overturn it18.
Evidence of doctrinal constraints run rampant throughout the Dickerson case. Among
Dickerson’s many motions was a petition to suppress evidence pursuant to a valid warrant, on the
basis that his confession, and consequentially, the warrant based on that confession, was in
violation of Miranda. The “Fruit of the Poisonous Tree” doctrine holds that any confession
pursuant to an unlawful arrest or evidence pursuant to an unlawful confession can not be used
against a defendant19. The Court’s ruling in Michigan v. Tucker 20 stated that “no evidence
obtained as a result of [an invalid] interrogation can be used against him”21. The CCV
6
perspective would state that this is a clear, unambiguous, and strong ruling that would be difficult
to maneuver around. The DCV would disagree with this statement, arguing that this doctrines
applicability is unclear, particularly under more detailed circumstances. For example, in Oregon
v. Elstad22 the Court held that the “fruit of the poisonous tree” doctrine “did not apply to
evidence discovered as the result of a Miranda violation”23. Furthermore, in the Dickerson case
the “Court specifically refused to overrule the principle that the ‘fruits’ doctrine did not apply to
a voluntary confession case under the Fifth Amendment.” Thus the Michigan v. Tucker ruling
was upheld24. Thereby, while the “fruits” doctrine would appear to be unambiguous, it is in fact
open to much interpretation dependant on the individual merits of a case.
In a broader perspective of the doctrinal constraints on the courts, the DCV would argue,
that the courts dictate the amount of power given to each branch, thus setting the policy and
acting dynamically. This could be observed as the Court “struck down attempts by the executive
branch and state and local governments to encroach on Congress’ territory” while simultaneously
“curb[ing] Congress’ power in several areas”25. Furthermore, the Supreme Court struck down 24
federal laws over the span of the past five years, one of which was the 3501 law in the Dickerson
case. This undoubtedly leads to the conclusion of the courts as dynamic actors.
The CCV on this issue could be summed up in the term stare decisis-- “the court should
adhere to the precedent”26. This was one of the premises on which Dickerson was based. Chief
Justice Rehnquist, in his 15-page majority opinion, stated that “whether or not we agree with
Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the
principles of stare decisis weigh heavily against overruling it now”27 . Thus, the Court was
constrained by this doctrinal matter. Given its implications, the Court views the majority of rules
7
in a similar manner28. The DCV would acknowledge the court’s constraint of stare decisis, but in
reality, it would state that this was a mere cover used to justify the Court’s dynamic nature. Even
in the dissent, Justice Scalia stated that the Courts decision “fragrantly offends fundamental
principles of separation of powers and arrogates to itself prerogatives reserved to the
representatives of the people”29. Thus, while the Court may appear to be constrained by doctrine,
it is able to interpret what that doctrine means, and thus avoid it all together. Therefore, doctrinal
constraints are predominantly weak, leading to the conclusion that the courts are dynamic.
Institutional constraints stem from the way that courts are internally organized and the
way they act in regards to external or political actors 30. In the CCV perspective, the courts would
be faced with external institutional constraints of the appointment process as the Justices, as well
as the lower court judges, are chosen by political actors. For example, President Bush indirectly
influenced the outcome of Dickerson as he appointed Justices that directly led to a conservative
court, and thus, a conservative opinion. The Senate Judiciary Committee Chairman Orrin Hatch
stated that “There are a lot of things that would go completely the other way… if Al Gore
[became] president”31. The effects of this now conservative politically chosen Supreme Court led
to it reversing nine of the ten rulings of the liberal 9th Circuit32. Thus, courts are inherently
constrained to the political ties of appointed judges whom are inherently political in nature. The
DCV would counter this argument by stating that, while a judge appointed by a particular party
will most likely make decisions based on the preferences of that party, there are many examples
of the reverse happening. Take Justice Warren for example; he was appointed due to his
reputation of being conservative, yet he quickly became known as being extremely liberal33 .
Furthermore, it is extremely difficult to remove judges once they are confirmed. They are
8
appointed for life; the broad removal power that was envisioned has been drastically narrowed 34.
Therefore, the appointment process holds nowhere near as much power as it is given credit for.
The 7-2 Supreme Court in Dickerson was not divided upon party lines, but rather a decision to
rule Miranda as a constitutional requirement.
A central issue of Dickerson was whether Congress could overrule Miranda by instating
the 3501 law, which brings into question the issue of overrides. The CCV would hold that the
courts are inherently constrained due to the legislative and executive powers of overrides, that is,
to nullify or create a new law that overpowers a ruling given by the courts. The DCV would
acknowledge that many holdings of the Court can be overridden, but the actors necessary to do
such are often too sluggish to have any profound effect. Furthermore, the legislative branch is
also limited in its ability to enact overrides, as determined by the holding of Dickerson. In
Dickerson, as previously mentioned, one of the major issues is whether Miranda was a
constitutional ruling or merely a “prophylactic” ruling, which would enable Congress to enact
3501 as ipso facto constitutional35. The Court held that “Congress does not possess the
legislative authority to supersede a Supreme Court decision construing the Constitution”36 . This
favors the DCV perspective, as the Supreme Court actively dictated what Congress can and
cannot do in its ruling, and Congress must subsequently respect that rule. As such, this enabled
the Court to determine whether Miranda was or was not constitutional. This, subsequently, gave
the Court enormous power in the fact that it was their opinion, and theirs alone, that could judge
this issue. The Court determined that Miranda was constitutional, and thus, confirmed its
standing. The Court held that “it is perfectly clear that Congress enacted 3501 with the express
purpose of legislatively overruling Miranda and restoring voluntariness as the test for admitting
9
confessions in a federal court”37. Therefore, the DCV perspective that the courts have the ability
to act in spite of overrides (and in some situations, such as Dickerson, refute overrides) holds
fast.
In the internal institutional constraint perspective, the issue of the passivity of the courts
can be largely negated due to the vast numbers of cases brought to the Supreme Court each year.
For the lower courts, the CCV would argue that they are constrained due to the inability of those
courts to bring desired the desired cases into fruition-- they must wait for the cases to come to
them. However, in regards to the Supreme Court, this perspective is nearly completely
discredited. The Supreme Court carefully and strategically chooses its cases in order to set policy
according to its agenda38. This was the case with Dickerson, as both Congress and the lower
courts had infringed upon Miranda. Therefore, the Court carefully chose this case in order to
reinstate the validity of Miranda39 . Thus, the Court is not bounded by the inability to actively
seek a platform for political action, but rather, has that platform delivered to their doorstep.
The final major constraint to be considered is the cultural constraint. Dickerson stemmed
from the Miranda ruling not being upheld, which was caused to a large extent, by the resilient
police subculture. In the CCV, the Miranda rights would be a perfect exemplum of how the
courts are constrained by cultural or popular will and action. Miranda was an accepted ruling by
the general populous. In the opinion of Dickerson itself, Chief Justice Rehnquist stated that the
Miranda Rights themselves have become embedded as a part of American culture as an issue of
fact in support of the Majority’s ruling40 . The opinion stated that “Miranda has become
embedded in routine police practice to the point where the warnings have become part of our
national culture”41.Thus, the CCV would state that even the Court itself noted that Miranda had
10
become a part of the American culture, and thus, was to be enforced as a bedrock principle upon
which this nation was to be set upon42. It is worth noting that all levels of society upheld
Miranda and the ideals it represented, apart from a section of the law enforcement subculture,
which the rights themselves were trying to control. In regards to the 3501 law passed by
Congress, both the judicial and executive branches avoided implementing it, which shows the
relevance of the general acceptance of a law in regards to its enforceability. From President
Nixon to President Clinton, no administration ever attempted to implement the 3501 law43. Even
President Johnson-- who signed 3501 into law-- believed that it was unconstitutional44. On the
judicial side, upon the passing of the 3501 law, the Attorney General Ramsey Clark “instructed
all US Attorney’s to offer into evidence only those confessions that satisfied dictates”45 .
Therefore, the executive branch, the legislative branch, and the general popular will have always
been pro-Miranda. The CCV would view this as a titanic constraint. They would point out that
since nearly all of society, apart from the legislative branch, has traditionally been in support of
Miranda, and since Miranda has become imbedded in American culture, then the essence of its
validity is tied directly to popular will. If, for example, the majority of society were contra
Miranda, then its ruling would not stand. Therefore, in the CCV, Dickerson’s ruling was directly
tied to both the public and elite popular will.
The DCV would agree that the ruling of Dickerson was tied to popular will, but would
consider that such a tie would not surpass the Court’s duty to interpret the Constitution into
applicable rules of law. The popular support of Miranda stems from the general public’s distrust
of the governmental authority. In particular, strict scrutiny is needed to safeguard citizens from
police officers. Thus, Miranda’s popular appeal is solely based on society’s desire to protect their
11
private interests and rights. The need for Dickerson can be comprehended as officers were being
trained to maneuver around Miranda. Police officers were being instructed to violate a person’s
Miranda rights in order to attain information that could likely be used in court for impeachment
purposes. Inherently, the general populous realized that “this theory and training is not faithful to
the language, history, or purpose of Miranda”46 . This can be seen in the ruling of People v. Bey47
in which the Court stated that “when the police deliberately step over the line and disobey
Supreme Court pronouncements, respect for the ruling necessarily diminishes”48. Therefore,
Dickerson, and consequentially Miranda, is an outcome of the public’s desire to uphold the
constitution, not sporadic popular whim that enables the courts to be dynamic in their decisions.
Therefore, the Courts ruling was based on the constitutionality of Miranda, and was not
constrained by popular will. Thus the judicial dynamism of the ruling was liberated from cultural
constraints.
In conclusion, the constraints faced by the Supreme Court in its ruling of Dickerson were
limited at best. The Court was empowered to act in judicial dynamism, affording them the ability
to rule in the interest of upholding the US Constitution. The Supreme Court was not bound by
doctrinal constraints, but rather had the ability to interpret unclear doctrine and give past rulings
a reinvigorated clarity. The Court was, likewise, not internally or externally bound by
institutional dilemmas. While it would appear that Dickerson was culturally constrained, this is
merely due to the fact that the general populous approved of the Court’s decision. The Court was
nevertheless, enabled to make whatever decision it pleased without consequence. The Dickerson
case gives an insightful look into American Adversarial Legalism, and the possible limitations
and constraints that it faces. Despite the fact that it would appear that the Court was heavily
12
constrained in its decision, the rebuttal of those constraints establishes the courts as political
actors who are able to create policy in the interest of the Constitution. The Dickerson case is not
a mere diamond in the sand of court cases in American adversarial legalism, but rather a
reflection of the ability of the courts to act in an unbound manner in order to achieve their
political agenda. While there may be constraints that appear to infringe upon the court’s ability to
an unbiased or liberated opinion, the judicial dynamism of the courts enables them to enact
legislation and play as political actors in an inherently political world.
13
1
Dickerson v. United States, 530 U.S. 428 (2000).
2
Id. at 437-444.
3
Gerald N. Rosenberg, The Hollow Hope, The Dynamic and the Constrained Court, 11 (1991).
4
Gerald N. Rosenberg, The Hollow Hope, The Dynamic and the Constrained Court, 21 (1991).
5
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Feb. 5, 2008).
6
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Feb. 5, 2008).
7
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Feb. 5, 2008).
8
Dickerson, 530 U.S. 428.
9
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
10
1968 Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§3501 (1968).
11
Professor Charles Whitebread, Lecture: Law 200: Child Law and Criminal Procedure, University of Southern
California (Feb. 19, 2008).
12
Bush v. Gore, 531 U.S. 98 (2000).
13
Neil Skene, Congressional Quarterly: CQ Roundtable: The Miranda Ruling: Equality of Justice, CQ Weakley,
1991, at 1546-1546.
14
Susanne Grant, Journal of Legal Advocacy & Practice, Will Miranda be Abolished? An Examination of United
States v. Dickerson and the Constitutionality of 18 U.S.C. 3501.
15
U.S. Const. amend. V.
16
18 U.S.C. §3501 (1968).
17
Grant, supra at 3.
18
Id. at 4.
19
CHARLES WHITEBREAD, CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE § 16.05 (B) (4th ed.
2000).
20
Michigan v. Tucker, 417 U.S. 433 (1974).
21
Id. at § 16.05 (B).
22
Oregon v. Estad, 470 U.S. 298, 318 (1985).
23
Connor Bateman, Dickerson v. United States: Miranda Is Deemed a Constitutional Rule, but Does It Really
Matter? 55.177 Arkansas Law Review and Bar Association Journal, inc. 1-58 (2002).
24
Id. at 6.
25
Elizabeth Palmer, CQ ROUNDTABLE: The Miranda Ruling: Equality of Justice, CQ Weakley, 2000, at
1669-1670.
Robert Campana © 2008
26
Elizabeth Palmer, By Reaffirming Miranda Ruling, Supreme Court Underscores Its Willingness to Police
Congress, CQ Weakley, 2000, at 1595.
27
Id. at 1595.
28
Id. at 1595.
29
Id. at 1595.
30
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Feb. 5, 2008).
31
Palmer, supra at 1669.
32
Elizabeth Palmer, Bush’s First Judicial Choices Highlight An Influential Conservative Court, CQ Weakley, 2001,
at 1072.
33
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Feb. 5, 2008).
34
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Apr. 3, 2008).
35
Grant, supra at 1.
36
Id. at 5.
37
Id. at 3.
38
Professor Jeb Barnes, Lecture: Political Science 130g: Law, Public Policy, and Planning, University of Southern
California (Feb. 5, 2008).
39
Grant, supra at 3.
40
Bateman, supra at 9.
41
Palmer, supra at 1595.
42
Bateman supra at 7.
43
Palmer, supra at 1595.
44
45
Id. at 1595.
Bateman, supra at 5.
46
Charles Weisselberg, Michigan Law Review, In the stationhouse after Dickerson, 99.517, 1121-1167(2001).
47
People v. Bey, 27 Cal. Rptr. 2d 28, 30-31 (Ct. App. 1993).
48
Weisselberg, supra at 1126