The rights of the accused, especially the right to counsel, the right to remain silent when taken into custody, and the right to be informed of one’s rights, were at stake here. But you already know this if you’ve ever watched network television. You may also know that the Miranda rule makes cops snarl and gives the DA ulcers. Miranda was the culmination of a series of decisions designed to protect the accused before trial, all of which got their muscle from the exclusionary rule (i.e., throwing out evidence that doesn’t conform to tight judicial standards) and none of which won the Warren Court much popularity with law-and-order fans.
The issue is, in fact, a sticky one. Consider it, for instance, from the point of view of Barbara Ann Johnson. One day in 1963, Johnson, an eighteen-year-old candy-counter clerk at a movie theater in Phoenix, was forcibly shoved into the backseat of a car, tied up, and driven to the desert, where she was raped. The rapist then drove her back to town, asked her to say a prayer for him, and let her go. Soon afterward, the police arrested twenty-three-year-old Ernesto Miranda, a high school dropout with a criminal record dating back to the time he was fourteen. Miranda had already been convicted of rape in the past. Johnson identified him in a lineup. Miranda then wrote out a confession, stating that it was made with full knowledge to his rights. He was convicted and sentenced to forty to fifty-five years in prison, despite his court-appointed lawyer’s contention that his client had been ignorant of his right to counsel. An appeal to the state supreme court failed, but the Supreme Court’s decision set Miranda free. Miranda and the ACLU were naturally appreciative of the Court’s libertarian stance, Barbara Ann Johnson less so. But not to worry. Miranda was later reconvicted on new evidence. He served time in prison, was released on parole, and was stabbed to death in a Phoenix bar ten years after the Court’s landmark decision. Although the Burger Court didn’t really make chopped meat of this and most of the other Warren Court rights-of-the-accused provisions, as conservatives had hoped, the Rehnquist Court did. A BOOK NAMED JOHN CLELAND’S “MEMOIRS OF A WOMAN OF PLEASURE” v. MASSACHUSETTS (1966)
Fanny Hill goes to Washington, there to help clarify the hopelessly vague three-pronged definition of obscenity the Court had formulated nearly a decade earlier in Roth v. U.S. Since Roth, the burden had been on the censors to prove that a work under scrutiny (1) appealed to prurient interest; (2) was patently offensive; and (3) was utterly without redeeming social value. But every small-town PTA seemed to have its own idea of what all that meant, and whatever it was, it usually involved harassing the manager of the local bookstore or movie theater. In Fanny Hill, which was decided in a single day, along with two other obscenity cases, the court took great pains to speak slowly and enunciate carefully: Even when there was no question that a work fit the first two criteria, it could not be declared obscene unless it was utterly without redeeming social value—not a shred, not a smidgen. And Fanny Hill didn’t fit that criterion. Of course, the judgment went on, that doesn’t necessarily mean that the book couldn’t be ruled obscene under certain circumstances, say, if the publishers marketed it solely on the basis of its prurient appeal. That helped. Pornographers took to making “medical films” prefaced by passages from Shakespeare, and the Court continued to be deluged by obscenity cases for years, until it finally threw up its hands and turned the whole mess into a question of “community standards” and local zoning laws. FURMAN v. GEORGIA (1972)
Capital punishment outlawed, in one of the longest (243 pages) and most tortured (a 5–4 split and nine separate opinions) decisions in the Court’s history. Never mind the gory details of Furman, which was only the lead case among five involving rapes, murders, and rape-murders. More to the point are the four separate arguments the Court was asked to consider as bases for declaring the death penalty unconstitutionaclass="underline"
The death penalty was imposed in a discriminatory manner; statistics showed that it was usually black and poor people who died, whereas middle-class whites simply hired the kind of lawyers who could get them off.
The death penalty was imposed in an arbitrary manner, with no clear criteria for deciding who would live and who would die.
Because it was so seldom used, the death penalty never really functioned as an effective deterrent.
Society’s standards had evolved to the point where the death penalty, like branding and the cutting off of hands, constituted “cruel and unusual punishment.”
To make matters more painful, there had already been an informal moratorium on executions in 1967, so that six hundred people now sat on death row, awaiting the final decision. Even those justices who favored capital punishment squirmed at the idea of having that much blood on their hands.
In the end, the Court took the wishy-washy stance that capital punishment was unconstitutional at that time because it was arbitrarily and capriciously imposed. Only two justices out of the five-man majority thought the death penalty was cruel and unusual punishment. The Court’s decision left everyone confused as to what to do next—but not for long. Within three years, thirty-five states had redesigned their death-penalty laws to get around the Court’s restrictions, and public-opinion polls showed Americans to be overwhelmingly in favor of capital punishment, thereby disproving at least one of the petitioners’ arguments: that society had evolved beyond the death penalty. In 1975, the Court ruled on the existing laws in five states and found only one (North Carolina’s) to be unconstitutional. In 1976, it reversed its stand altogether; ruling on a batch of five cases, it found that the death penalty was not cruel and unusual punishment per se. Still, no one wanted to cut off the first head. It wasn’t until 1977, when Gary Gilmore broke the ice by insisting that the state of Utah stand him in front of a firing squad, that anyone was actually executed. The first involuntary execution took place in 1979, with the electrocution of John Spenkelink, who had been reprieved by the Furman decision seven years earlier. Since then there have been around one thousand executions nationwide, most by lethal injection. Texas leads the country with the highest number of executions per capita. Why aren’t you surprised? ROE v. WADE (1973)
The decision that legalized abortion as part of a woman’s right to privacy (although Justice Blackmun, who wrote the majority opinion, spent many months trying to prove that abortion was part of the doctor’s right to privacy). According to the opinion, the state only has the right to intervene when it can prove it has a “compelling interest,” such as the health of the mother. As for the fetus, its rights can begin to be considered only after the twenty-sixth week of pregnancy. The Court thus tiptoed around the quagmire of moral and religious disputes raging over the abortion issue and based its decision on the relatively neutral ground of medicine. However, this was not the most airtight of Supreme Court opinions, and it came under constant, ferocious attack for the next twenty years. The state of Texas, for instance, filed a petition for rehearing, comparing the Court’s assertion that a fetus was not a person before the third semester of pregnancy to the Court’s 1857 decision that Dred Scott was not a person. In speeches and articles preceding her ascension to the Supreme Court, Justice Ruth Bader Ginsburg publicly opined that the Court might have avoided a lot of headaches if it had simply based its decision on the grounds of equality instead of privacy and had refrained from getting enmeshed in the gory medical details. Still, by 1993 the court had reaffirmed women’s basic right to abortion so many times that the storm center had shifted from the issue of abortion itself to questions like who should pay for it. Meanwhile, some radical antiabortionists had given up on legal challenges altogether and, in the spirit of the times, just started shooting doctors. Under Presidents Bill Clinton and George W. Bush, abortion opponents shifted tactics to focus on teenagers. By 2005, forty-four states had laws on the books requiring teens either to notify or get consent from their parents before getting an abortion. Most states allow adolescents to go to court for a waiver if they can show that their parents are, say, alcoholics or abusive. So for the moment, any fifteen-year-old who’s savvy enough to go to court on her own and persuade a judge of the merits of her case can still consider abortion an option. UNIVERSITY OF CALIFORNIA REGENTS v. ALLAN BAKKE (1978)