by Jim Newton
The three voting rights cases, combined with Baker v. Carr and Reynolds v. Sims, completed the Warren Court’s treatise on the centrality of the franchise in modern America. States were not to block voters from casting ballots—not because of race, illiteracy, language deficiency, or poverty. Once those votes were cast, they were to be counted equally; states were not to create districts that gave some votes more weight than others. Voters were to have power. They were to share it equally with one another, and they were expected to use it to secure the benefits of the Great Society even then taking shape in the White House and in the halls of Congress. Congress could help that process along but could not stand in its way. Warren, who won seven elections himself and lost only when hooked to doomed Tom Dewey, now placed his full faith in the ballot to extend democracy and spread its benefits across the land. Together, the three voting cases also demonstrated the extent to which Warren commanded his Court and worked the subtleties of his position. When the nation needed an affirmation of the Voting Rights Act, Warren assigned the opinion to himself, ensuring that the case would bear the signature of the Chief Justice of the United States. When the poll tax required summary burial, he assigned it to Douglas, whose brusque intolerance of the tax was conveyed in his writing. And when the issues out of New York posed the opportunity to reunite the old liberal majority, he reached first to Black; failing there, he knew he needed doctrinal subtlety, and he found it where he usually did, in Brennan.
Egalitarianism underlay Warren’s belief in the power of voting and the extension of the franchise. But the idea of equality, as Cox perceived, “is not easily cabined.” The insistence on equality started for Warren’s Court with schools before it moved to voting. Then, even as he imposed his notions of fairness and equality into state and local elections, Warren was moving to other areas as well. As far back as 1956, the Warren Court had held that indigent defendants were entitled to a free transcript of their cases on appeal.48 Mapp v. Ohio in 1961 had barred the states from admitting illegally seized evidence; Gideon v. Wainwright in 1963 had required all states to provide indigent defendants with lawyers; Douglas v. California, decided even before Gideon but held over in order to allow then lawyer, now Justice Fortas to make his famous argument, required the states to provide counsel for appeal in addition to trial; and, most recently, Escobedo v. Illinois, decided in 1964 and written by the newly departed Goldberg, had barred the use of confessions when extracted from a suspect who asked for a lawyer and was denied one. Some of those cases had been decided by close votes, but not once had Warren dissented.
In August 1965, when Warren’s new clerks assembled in the Court, he told them he had a special assignment for them that year. Escobedo, the chief said, had laid down new law on confessions, but he wanted now to clarify that ruling. So he instructed his clerks to scour any cases coming to the Court for ones that might help the Court spell out its principles on the admissibility of confessions taken by police of suspects in custody. There were, one of Warren’s clerks, Kenneth Ziffren, recalled, 200 to 300 that touched on some aspect of that issue, but the clerks were seeking cases that were uncontaminated by other factors, such as searches and seizures that introduced side elements into the confession itself. In the end, they settled on four, and suggested as the lead case Miranda v. Arizona.49
Ernesto Miranda was not a sympathetic defendant. Twenty-three years old and of limited intelligence, he tried three times in late 1962 and early 1963 to rape young women in Phoenix, twice giving up after they struggled and then succeeding on the third attempt. One victim described the car of her assailant, and a few days after the attack, her cousin spotted a vehicle that seemed similar. She hastily jotted down the license plate as the car drove off, then gave it to the detective handling the rape case. The detective found a car similar to the description and with a license plate number that was close. He called the owner, who said her boyfriend occasionally borrowed it. Her boyfriend, she added, was named Ernesto Miranda. The detective brought Miranda in for questioning, and put him in a lineup. The witnesses could not be sure, but when Miranda asked, “How’d I do?” the detective told him they had picked him as the assailant. “Well,” Miranda replied, “I guess I’d better tell you about it then.”50 His confession was admitted against him at trial, and he was convicted in two separate trials of robbery, kidnapping, and rape. He was sentenced to 20-30 years for kidnapping and rape, and to 20-25 years for stealing $8 from one of his victims.
During Miranda’s questioning by police, no lawyer had been present, not because he had asked for one and been refused—the case in Escobedo—but because he did not know he could have one if he asked, and thus did not think to request one. For the Court, the question was whether Miranda had a right to know his rights and, if so, whether the police had the obligation to tell him.
In essence, the Court was asked to consider the interaction between the Sixth Amendment’s right to counsel—a right this same Court had required of all states—and the Fifth Amendment’s protection against self-incrimination. If a suspect could be cajoled by police into confessing before he ever saw a lawyer or knew that he had a right to meet with one, the later appointment of counsel was meaningless—the case already was lost. Warren knew that well from two angles: As a prosecutor, he had put the Point Lobos defendants away after extracting a confession from a suspect unrepresented by counsel; as a justice, he had seen rough police tactics rewarded with convictions and had grown increasingly unsympathetic. He had, by his reckoning, voted the wrong way in Irvine, condoning invasive police misconduct in a state case. A decade later, the fullness of his change of heart had come in Mapp and then Escobedo. Now he was prepared to go further still. At the conference following the argument in Miranda, Warren read a long statement outlining his views and then assigned the opinion to himself.51
Warren rarely drafted in his own hand. After Brown, he had come to rely more heavily on his clerks, generally dictating to them his views of a case and the basis upon which he wanted the decision to rest. He then turned over the writing to them, and though he closely reviewed their work, he largely left drafting to them. Miranda was different. Warren wrote an extensive outline himself, drafting by hand in pencil on yellow legal tablets, just as he had in Brown. Although rough, it included the principal elements of what would become the final decision—the requirement that police warn suspects of their right to remain silent, of their right to consult with a lawyer, of their right to have a lawyer provided them if they could not afford one. The document was far from polished—Warren misspelled “Escobedo,” putting it down as “Escobido”—but it was a solid start.
All three of his clerks that year contributed their thoughts in memos, and then in typewritten drafts circulated among themselves but not yet to the brethren. On May 9, their work was sufficiently developed that Warren and his clerks took one copy, still not to the conference but just to Brennan, in order to sound him out on the developing opinion.52 What they showed Brennan reflected Warren’s initial impression of the case, which is that it turned on the Sixth Amendment and concluded that Miranda’s right to a lawyer was violated by the police refusal to tell him he had such a right and building that ruling largely as an extension of Goldberg’s work in Escobedo. Clerk Kenneth Ziffren had some misgivings about that approach, as did Brennan.53 For them, the right of Miranda’s that was violated was not so much his right to a lawyer—he had been represented at trial—but his right not to be forced to be a witness against himself. By the time Miranda got his lawyer, he had signed a confession. There was little left to do to save him. Miranda’s casual and unknowing abdication of his Fifth Amendment rights thus made the effective exercise of his Sixth Amendment rights impossible. Brennan expressed his thoughts to Warren in a memo on May 11, and Warren agreed to rewrite portions of his opinion.54
A smarter criminal would have known that he had a right to a lawyer, and, important from Warren’s perspective, a wealthier one probably would have as well. What thus prevented Miranda from
enjoying his constitutional rights was ignorance—ignorance closely related to poverty. That was the key, as it offended Warren’s sense of egalitarianism; if a Southern state could not deny a poor voter access to the polls with a poll tax, how could police deny a suspect knowledge of his rights because the suspect was too poor and ignorant to protest? Prodded by his clerks and his colleague to focus on the Fifth Amendment basis for the opinion, Warren returned to work on it. What he produced was an opinion that seemed nearly as much the work of a governor as that of a justice—a ruling notable mainly for the extent to which it moved beyond constitutional analysis to the drawing of clear rules for police.
Warren tried at the outset of his opinion to deny its novelty—“our holding is not an innovation in our jurisprudence, but is an application of the principles long recognized and applied in other settings,” he professed.55 And in one sense, he was right, as the ruling attempted to make Escobedo a workable doctrine in the context of real-life police interrogation. Warren’s opinion explored the atmosphere of the interrogation room, its isolation from the world, the oppressive psychological advantage that it conferred on the police officer, its encouragement of deceit and withholding by authorities eager to extract from the suspect the words that would convict him. Warren summarized police manuals and cited their encouragement of officers to use psychological advantage. “Even if he fails to do so,” one police text advised, “the inconsistency between the subject’s original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense ‘out’ at the time of trial.”56 Such overt reliance on trickery depressed and offended Warren. If Warren’s irritation with the police was evident, however, his constitutional basis for curbing them was less clear.
In doctrinal terms, Miranda was a bit hard to decipher. In one passage, Warren argued that the rules he was propounding were directed at restricting evidence that could be admitted at trial—a traditional role for the Supreme Court and certainly not “an innovation in our jurisprudence.” “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination,” Warren wrote.57 That suggested Miranda was a rule of admissibility, one commanded by the Fifth Amendment’s protection against the use of compelled statements to implicate a defendant in a criminal trial. But barely had he completed that sentence before he created a different rule, not that improperly elicited testimony was merely inadmissible but rather that the Court was announcing specific rules for police conduct itself, in effect regulating not just courtrooms but police stations, too. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed,” Warren wrote. “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”58
That specific rejoinder—telling police precisely what they must inform a suspect—was in Warren’s first thoughts on the case and it came perilously close to legislating. No words in the Constitution commanded such a specific warning, but Warren had tried in Irvine, Mapp, and Escobedo to nudge police conduct first by urging prosecutions of wayward police—to no avail—then, with more success, by limiting evidence acquired through misconduct. Now he resorted simply to asserting what police must do. Harlan had objected to Warren’s approach from the first conference on Miranda, when he rejected the “radical changes” proposed by Warren. 59 The final opinion had only made Harlan more concerned, and he replied with a forceful dissent, emotionally delivered. Harlan, by that time in his life nearly blind, flushed as he addressed his brethren and the audience. Miranda was handed down a year after the Watts riots had stunned the nation, and at a time when lawlessness was on the rise. The Court, Harlan warned in a quavering voice, was engaged in “dangerous experimentation” in the face of a “high crime rate that is a matter of growing concern.”60
In his written dissent, Harlan was no less determined and not much less impassioned. “One is entitled to feel astonished that the Constitution can be read to produce this result,” Harlan said of Warren’s conclusion that Miranda’s oral and written confessions were ruled inadmissible under the new doctrine. “These confessions were obtained during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime. . . . There was, in sum, a legitimate purpose, not perceptible unfairness, and certainly little risk of injustice in the interrogation.”61 Harlan, usually so restrained in manner and speech, called the ruling “heavy-handed and one-sided” and warned of grave consequences to society. “The social costs of crime are too great,” Harlan wrote, “to call the new rules anything but a hazardous experimentation.”62
So powerful was his argument that Brennan, having helped push Warren toward the opinion as written, drafted a concurrence to respond directly to Harlan, specifically rebutting Harlan’s contention that the new rules laid down by the Court precluded states from developing their own safeguards on police interrogations. “Nothing we hold today prevents the States from devising and applying similar prophylactic means for avoiding the dangers of interrogation which at the same time eliminate the possibility of such contests of veracity between the police and the accused,” Brennan wrote.63 He neglected to note, naturally, that any such alternative would need to satisfy the Court that it was at least as effective as the warning that Warren had written for the police to deliver. Brennan showed his concurrence to Warren, who received it badly. In a relatively rare moment of disagreement between the two, they argued over its necessity and desirability. Warren was wary of suggesting to states that they could tinker with the warning, and worried, as always, about signaling a fractured Court. Brennan yielded and withdrew his concurrence.64
That was lucky for Warren, because he fought to hold his Court on Miranda until the day it was announced. Up until that morning, Warren had assumed he had the votes of Brennan, Black, Douglas, Fortas, and Clark. But Clark, who was often prone to second thoughts, bolted at the last minute. Kenneth Ziffren, Warren’s clerk, was in a hallway downstairs at the Court that morning when one of Clark’s clerks handed him a document. “He’s dissenting and concurring,” the clerk warned Ziffren. “He’s what?” Ziffren responded. Ziffren knew Warren would be furious, and so he ran back to the chief justice’s chambers to inform him. Warren was not there, but Margaret McHugh told Ziffren he could find the chief down in the Court’s barbershop. Ziffren bolted from the chambers and headed downstairs. Warren looked up, annoyed, as Ziffren burst inside. The news of Clark’s defection irritated Warren even further, and he directed Ziffren to go dig up an opinion of Clark’s that he could cite from the bench to embarrass the justice over his change of heart. Ziffren unearthed Clark’s writing in Mapp v. Ohio and hastily put together a statement for Warren to use in order to remind Clark that he had drifted from his position in that case. Warren, his irritation with Ziffren now forgotten, praised him for finding just the right citation to punish Clark for stranding Warren and leaving him with a bare 5-4 majority. Warren read the statement as written, and a seething Clark then sent his clerks back to draft a more elaborate dissent to include in the formal record. That afternoon, the other justices and clerks had a picnic to celebrate the approaching end of the session. Clark and his clerks skipped the event. As word circulated of the last-minute fireworks, the other chambers were reminded that it was dangerous to cross Warren—and with that lesson, his leadership over the Court was reconfirmed. Leading the Court, as Warren well understood, involved more than grace and cajoling. It never hurts in politics for potential opponents to know that they are allowed no free shots at the leader.65
Police were thunderstruck. Bernard C. Parks was a rookie police offic
er in the LAPD when Miranda came down. “The word in the locker room,” he said, “was that we were done with effective policing.”66 North Carolina senator Sam Ervin similarly saw the ruling as emboldening criminals and curtailing police, both at the expense of victims. “Enough has been done for those who murder and rape and rob,” he harrumphed. “It is time to do something for those who do not wish to be murdered or raped or robbed.”67
In the political torrent that Miranda opened, it was easy to see Warren as pushing the vanguard of liberal judicial activism and to deplore him for handcuffing the nation’s police. In fact, the decision was more correctly thought of as a melding of his deeper instincts—his unwillingness to shrink from action once convinced that action was called for and yet also his lifelong search for a middle where others saw no room for compromise. For Miranda was, in fact, a compromise, as was evidenced by some of the civil libertarian response to it. John de J. Pemberton, Jr., executive director of the American Civil Liberties Union, did not endorse Miranda. To the contrary, he expressed “regret that the Court did not take the final step of stating that the privilege against self-incrimination cannot be fully assured unless a suspect’s lawyer is present during police station interrogation. Only by such an affirmative step can the abuses of police station interrogation actually and finally be eliminated.” 68 That contention was not limited to the civil liberties Left. In the months leading up to Miranda, Attorney General Nicholas Katzenbach and Judge David Bazelon had exchanged public letters on the question of when a suspect was entitled to a lawyer, with Bazelon arguing that a poor suspect should be able to have an attorney present at any stage of an investigation where a rich suspect could call on one—including, obviously, interrogation.69 Caught between those who demanded that only confessions given in the presence of a lawyer be admissible and those who argued any further restraints on police would only exacerbate crime, Warren chose—as he so often did—the middle, though undeniably a middle closer to the liberals than the conservatives. The ruling in Miranda, Warren wrote,
