The Abortion Case and Criminal Law
The big news in law is, as we all know by now, the Supreme Court’s leaked draft opinion (per Alito, J.) overruling Roe and Casey. The central holding of the draft is that the Constitution simply has nothing to say about abortion, and therefore that whether and in what ways it should be regulated are matters left to the political process.
CJLF takes no position on abortion, and neither for present purposes do I (a mere guest contributor here in any event). But there is potentially very important news for criminal law in the draft opinion.
As Justice Scalia once famously observed, the Constitution says what it says and doesn’t say what it doesn’t say. It doesn’t say beans about abortion, end of story. It’s up to democratic not judicial processes. And if federalism holds the day, the democratic process will produce considerably varying outcomes in the 50 states, some making abortion always or almost always illegal, some permitting virtually abortion on demand, and most in between.
What’s the lesson here for criminal law? For decades, the Left has been using the courts to manufacture, as “constitutional” rights or requirements, things that the Constitution simply does not address. Miranda is the most flagrant example of this in criminal law. The idea that a defendant’s statement must categorically be seen as “compelled” in violation of the Fifth Amendment if it is not preceded by warnings — a theory the Court simply made up — is not only unjustified by any sane reading of the Constitution, but preposterous as a factual matter. You don’t even need to be out of high school to know that some unwarned statements will be compelled and some won’t, and that whether warnings have been given is relevant to, but hardly dispositive of, the voluntariness question.
The reason the Left settled upon the strategy of having the judicial branch manufacture one right and another and another for criminal defendants is that it knew it would fail if it tried going to Congress (and its failures are legion, for example, in trying to end qualified immunity, eliminate mandatory minimum prison terms, or ban consideration of “acquitted conduct” at sentencing). In other words, the Left, which constantly crows about its love of democracy, went the least democratic (but most effective) route it could find, i.e., importuning unelected federal judges to do what Congress wouldn’t.
Some love of democracy, that.
But for however that may be, if the Alito draft holds, there may be a realistic hope that some judicially-manufactured “constitutional” rights may be in for a re-examination by the welcome advent of a Court that actually confines itself to what the Constitution says rather that what those who have failed with their pro-criminal agenda in Congress want it to say. A re-examination of the Court’s holding in Dickerson, along the lines of the Scalia/Thomas dissent, would be a wonderful place to start.