Apr 24, 2009 A case supreme
Supreme Court spiral staircase.
Law school presented me with a challenge of maintaining harmony in the face of such Supreme Court criminal law abominations as Chimel v. California, 395 U. S. 752 (1969), which authorized police to search an arrested person and the area around his or her “lunge and grasp” even once s/he is handcuffed; Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld the constitutionality of criminalizing consensual adult sodomy (fortunately later overturned by Lawrence v. Texas, 539 U.S. 558 (2003)); and Gregg v. Georgia (1976), McClesky v. Kemp, 481 U.S. 279 (1987), and their progeny that kept the death penalty too alive and well. Giving me continued hope in the Supreme Court soon before my first semester in law school was Batson v. Kentucky, 476 U.S. 79 (1986), which provided powerful sanctions for unlawful discrimination by prosecutors in jury selection.
By now, I recognize that harmony begins from within each of us rather than waiting for other people to do the right thing. Not having yet reached that stage yet in law school, I kept hope in some ongoing justice from the Supreme Court in such rulings as Miranda v. Arizona, 384 U.S. 436 (1966), which has been battered but which still has averted many a conviction, if only more people would assert their Miranda rights; Gideon v. Wainright, 372 U.S. 335 (1963), which requires making available tax-paid lawyers for indigent defendants facing incarcerable prosecutions; and Brady v. Maryland, 373 U.S. 83 (1963), which enables reversal of convictions should the prosecution fail to timely disclose exculpatory evidence.
Having learned instrumental music from the age of nine, the concept of harmony has long held vital musical and personal importance for me. If Miranda were a song, it would for me not be Carmen Miranda singing with a fruit salad on her head, but instead would be John Coltrane’s A Love Supreme (read here, too). A Love Supreme was one of Coltrane’s enduring masterpieces which for him deeply expressed his love for G-d. Although not reaching the masterpiece stratosphere of Coltrane’s A Love Supreme, Miranda is about the closest Supreme Court tribute thus far to criminal defendants’ Constitutional rights.
If last week’s Gant opinion — which substantially rolled back the damage inflicted by New York v. Belton, 453 U.S. 454 (1981) with Belton’s practically black-letter rule allowing the search of cars of arrested persons, and which, post-Gant, erodes police motivation to make pretextual car stops under Whren v. U.S., 517 U.S. 806 (1996) and to arrest people charged with non-jailable offenses under Atwater v. Lago Vista, 532 U.S. 318 (2001) — were a song, it would for me be Antonio Carlos Jobim’s Wave in reverse, as it rolls back the devastating Belton tsunami.
The United States Supreme Court remains a place that in a given month can inflict much harm that will continue for years if not decades, and that might then turn around and deliver a stunning victory for civil liberties. Such outcomes are determined by the text of the Constitution, the text of statutes and treaties being analyzed, the justices’ interpretation of Supreme Court precedents and their views on the extent of stare decisis treatment to give to each precedent, and what each justice ate for breakfast or had stuck in his or her underwear as a child.
Your votes for president and the United States Senate determine the Supreme Court’s nine occupants. Remember that.