Dr. Dehnel Rosenberg, Epp, and Miranda



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10/21/09

Dr. Dehnel


Rosenberg, Epp, and Miranda:

A Case Study on the Implementation of Supreme Court Decisions

On the surface, it seems that determining how much power courts have would be a simple task. However, history has proven this to be false. The courts have been viewed in many different ways through out the history of our country. There are three common views of court power that are important for modern scholars of the court system. Those who believe courts have little power to cause social change are said to adhere to the Constrained Court view. Those who believe courts have a great deal of power to cause social change are said to adhere to the Dynamic Court view. The final, and youngest, take on court power combines aspects of the Constrained and Dynamic views into what I shall call the Condition Dependent Court view of power. This view sees that there are certain conditions which allow the court to cause social change.

What kind of change are we talking about here? The Supreme Court examines many different kinds of cases, so determining which cases to look at is important. There is little, if any, value in examining noncontroversial cases. If a case is noncontroversial, there is no reason to expect a reaction of any kind by those outside the court besides the parties directly effected. Thus, it is logical to examine cases which are highly controversial. One of the most well known Supreme Court decisions is Miranda v. Arizona (1966). This decision has been the subject of many articles and books. It has also been popularized through various television shows involving police (Law & Order for example).

Not only is the Miranda decision well known, it has also been highly controversial. “In its immediate aftermath, the Miranda opinion was assailed by police, prosecutors, politicians, and the media” (Leo 622). Given the controversy, amount of literature on the case, and public knowledge of this case, I feel it is a good example for examining the ability of the Supreme Court to cause social change.

Gerald N. Rosenberg discusses the three views on the power of courts to cause social change, as well as the Miranda decision, in his popular and provoking book, The Hollow Hope: Can Courts Bring About Social Change? Rosenberg examines the underlying beliefs and theories for each of the views, as well as the problems one can encounter with both the constrained and dynamic views of the courts. It is from these problems that Rosenberg creates the Condition Dependent view of court power. To understand Rosenberg’s argument about the power of courts to cause change, it is important to understand the two other models of court power which Rosenberg synthesizes.

Those who advocate the Constrained Court view believe that there are three constraints which prevent courts from causing social change. First, “[t]he bounded nature of constitutional rights prevents courts from hearing or effectively acting on many significant social reform claims, and lessens the changes of popular mobilization” (Rosenberg 13). This restraint is caused by several factors. First, the Supreme Court does not get to issue a ruling on which ever issue it wants. A case must work its way through the system. Second, judges must be concerned with the legal system as a whole, and thus seek to create stability and predictability. Third, there are rules regarding the ability of parties to bring a case before the Court, and rules over which cases the Court is allowed to hear. Finally, by framing an issue in legal terms, the mass political appeal is often undercut (11-2).

The Second constraint says, “The judiciary lacks the necessary independence from the other branches of the government to produce significant social reform” (Rosenberg 15). The clearest example of this constraint can be seen in the appointment process for federal judges. Federal judges are appointed by the President, and confirmed by the Senate (13). As Richard Funston points out, “Because the Court is a political institution whose members are recruited with their political preferences and prejudices in mind, it is inevitably part of the dominant political alliance…” (Funston 796). Congress also has the ability to change the makeup of the Court through legislation. The most recent example of this was Franklin Roosevelt’s plan to increase the size of the Supreme Court to get a majority of justices in favor of the new deal (Rosenberg 14). It has also been found that when the government has a role in a case, the Court tends to defer to the government’s position (14).

The final constraint says, “Courts lack the tools to readily develop appropriate policies and implement decisions ordering significant social reform” (Rosenberg 21). This claim has roots back to the founding of our country. In Federalist 78, Alexander Hamilton said “that the judiciary ‘has no influence over either the sword or the purse; no discretion either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgement…’” (Rosenberg quoting Hamilton 15). For the Court to effect any change, it must rely on the resources and support of either the Congress, the Executive branch, or whatever bureaucracy the ruling impacts. Logically, it follows that if this support is missing, the Court’s decision will have little to no effect. Internally, the courts are not always consistent, with lower court judges having large amounts of discretion in interpreting higher court rulings (Rosenberg 17). All of these constraints taken together paint a picture of a Court unable to cause significant social change in most cases.

On the other side of the spectrum, adherents to the Dynamic Court view believe the courts are, at times, the best route to take for advancing significant social change. Courts, they believe, are more independent from political pressures since at the federal level they are appointed, not elected (Rosenberg 22). This gives the Court the ability to act against public opinion and grant minority rights (24). The Court can also serve as support for reformers within bureaucracies, which are hard to reform solely from within (23). Courts can also help “‘politicize issues that otherwise might have remained unattended’” forcing politicians to act (Rosenberg quoting Monti 25). These characteristics, taken together, allow the Court to play a large role in causing social change.

Rosenberg finds both of these views to be partially true and partially false. He believes both “oversimplify” reality (Rosenberg 30). Instead he believes that “the constraints of the Constrained Court view generally limit courts, but when political, social, and economic conditions have become supportive of change, courts can effectively produce significant social reform” (31). The Constraints can be overcome through gradual change in legal precedent, support for change from Congress and the executive, and incentives, punishments, or support from “officials crucial for implementation” (36). From this analysis, Rosenberg draws the conclusion “that court decisions are neither necessary nor sufficient for producing significant social reform” (35).

Is this claim valid? Rosenberg provides detailed accounts of several cases to support his argument, including Miranda v. Arizona. However, Rosenberg is just one of many sources on the subject. Similarly to Rosenberg, Charles R. Epp believes that the success of cases from the Warren Court era, of which Miranda is apart, stems from the “support structure” provided by outside groups (Epp 477). Epp advises against relying solely on the courts, recommending instead that hopeful reformers “provide support to rights-advocacy lawyers and organizations” so that those groups can build a base of support in the judicial system and society as a whole (479). These groups provide “information, experience, skill, and resources” to help build a base for mobilization after a judicial decision (480). Epp concludes, “There are limits to the social changes produced by judicial rulings, and those rulings depend on support from government officials and on private parties having the capability to use them well” (480-1).

This support structure that Epp describes is what creates the conditions under which Rosenberg believes courts can cause significant change. The advocacy groups and lawyers work to change the attitudes of the public, politicians, and bureaucracies which are essential for implementing a Supreme Court decision.

What evidence is there that the framework laid out by Rosenberg and Epp actually exists? Studies have been done on both the short and long term consequences of Miranda, and it is important to get multiple perspectives on this issue. After examining the studies about the impact of Miranda, it seems clear that Rosenberg’s analysis of the Court is true for this case. However, that is not to say the Court effected no social change with Miranda. While many believe the Miranda decision has been neither necessary nor sufficient in achieving its intended goals, adherents to alternate interpretations of Miranda believe the decision did cause its intended change. In either case, Rosenberg’s analysis of court power is valid.

Before delving into Miranda itself and the subsequent studies, it is important to understand policing practices and how they can get an officer into trouble. “Because police work outside the public eye, they routinely have opportunities to engage in a laundry list of corrupt activities” (Skogan 67). The work environment for police officers is the streets. This provides for little direct oversight over police actions in the field. This lack of oversight can lead to cases like 1935’s Brown v. Mississippi, which involved the use of torture by police to extract a confession (69). While this is an extreme case whose conditions were not present in Miranda, it is an example of the institutional mindset of police. “[T]heir organizational concern is less for the legitimacy of means than for the rather immediate end of enforcing behavior standards” (Reiss 49).

This “organizational concern” is what causes conflict between the police and courts. In contrast to the behavioral goals of the police, courts are concerned with “articlulat[ing] a moral order,” which places courts and police at opposite ends of the legal system (48). It should be of no surprise then that police are often hostile to court decisions which place this moral order above the ability of the police to enforce behavior. The Miranda decision follows this predicted outcome. Police said the decision would get in the way of conducting investigations, politicians linked the decision to increased crime, and then President Richard Nixon called the decision “a victory for the ‘crime forces over the ‘peace forces’” (Leo quoting Nixon 622). Even as late as the 1980’s, the Reagan Administration was calling for the Supreme Court to overturn Miranda as illegitimate (623). What caused such great animosity toward a Supreme Court decision? It is now time to examine the Miranda case itself.

The facts of the case were as follows. Ernesto Miranda was arrested for allegedly kidnapping and raping a woman near Phoenix, Arizona (Epstein 582). After arrest, Miranda was interrogated at the police station where he made a confession (582). During this time, Miranda did not ask for a lawyer, nor was there any allegations of police misconduct, however, in Miranda’s later appeal to the Supreme Court, his lawyer argued that “ because the entire interrogation process is so inherently coercive that any individual will eventually break down, the Court should affirmatively protect the right against self-incrimination by adding to those protections already extended in Escobedo [v. Illinois (1964)]” where the Court decided that when a person asked for an attorney, no more questioning could take place until the attorney was present (582-3, 580-1).

Prior to the Miranda case, the Supreme Court had used a voluntariness test to evaluate confessions, which examined “the ‘totality of the circumstances,’ which included the facts of the case, the personal characteristics and background of the suspect…, and the conduct of the police during interrogation” on a case by case basis (Leo quoting Kamisar 624-5). A slow chipping away at the voluntariness test took place from 1963 until the Miranda decision in 1966. Extending attorney rights began with Gideon v. Wainwright (1963) which extended the right to counsel in all felony cases, followed by Massiah v. United States (1964) which extended the right to counsel upon indictment (Leo 626). Self-incrimination rights were extended in Escobedo v. Illinois (1964) discussed above (626-7).

Chief Justice Warren wrote the Opinion of the Court. The Court examined how the psychological techniques of the police can be coercive, and conclude “coercion can be mental as well as physical” (Miranda v. Arizona 4). The Court goes on to describe how police manuals provide police with psychological techniques to influence a suspect into confessing, including when they have asked for a lawyer (4-6). The Court concludes, “In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms…. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice” (6). With the voluntariness test being deemed insufficient for protecting a suspect’s rights, the Court had to proclaim a new standard.

What the Court developed was a four part warning. This warning included 1) The Right to remain silent, 2) That any statement made could be used in court, 3) The right to have an attorney present, and 4) The right to a court appointed attorney if the suspect could not afford their own (Miranda v. Arizona 9-10). No longer did failure to ask for a lawyer mean the suspect was waving his rights. The Court required an express waiver, which it was the burden of the police to prove was obtained without coercion (10,11).

It is now possible to examine the impact of Miranda in creating social change. To do this, I shall use Bradley C. Canon and Charles A. Johnson’s model of implementation and impact to break the legal system into groups. They divide the system into four “populations,” “Interpreting,” “Implementing,” “Consumer,” and “Secondary” (Canon 452-4). The Interpreting Population is the grouping of lower courts which “responds to the policy decisions of a higher court by refining the policy it has announced’ (452). The Implementing Population “...is made up of authorities whose behavior may be reinforced or sanctioned by the interpreting population,” in this case the Police and to a certain extent Congress (453). The Consumer Population is “[t]hose for whom the policies are set forth by the court,” those being interrogated in this case (454). Finally, the Secondary Population is everyone who is not included in the other populations (454). I shall examine Miranda’s implementation by and impact on these various populations.

Works Cited

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Bradley Canon and Charles Johnson, “Responses to Judicial Policies,” in Diascro and Ivers, eds.

Inside the Judicial Process. Boston: Houghton Mifflin, 2006. Print.

Cassell, Paul G., and Bret S. Hayman. “Police Interrogation in the 1990s: An Empirical Study of

the Effects of Miranda.” UCLA Law Review Feb. 1996: 839-931. Lexis Nexis. Web. 20

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Dickerson v. United States. No. 99-5525. Supreme Ct. Of the US. 19 April 2000. Findlaw. Web.

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Comparative Perspective,” in Diascro and Ivers, eds. Inside the Judicial Process. Boston:

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Course. Washington, D.C.: CQ Press, 2009. Print.

Funston, Richard. “The Supreme Court and Critical Elections.” The American Political Science

Review Sept. 1975: 795-811. JSTOR. Web. 1 Sept. 2009.

Kamisar, Yale. “On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It-And What Happened to It.” The Ohio State Journal of Criminal Law Fall 2007: 163-203.

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