by Ted Cruz
As a political matter, the assault from elected Democrats on free speech is sure to continue. An abject willingness to strip away the free speech rights of American citizens has become an explicit litmus test for judicial appointments from today’s radicalized Democrats. And, as a constitutional matter, on the Supreme Court, when it comes to either protecting or destroying our fundamental protections for political speech—the very heart and soul of our representative democracy—we are, sadly, only one vote away.
CHAPTER 7 CRIME, LAW AND ORDER, CAPITAL PUNISHMENT, AND KENNEDY V. LOUISIANA
Few issues personalize judicial activism like crime and punishment. Indeed, with the rise of the activist Supreme Court in the 1960s, it was criminal-law issues, in particular, that cut through the noise and outraged the American populace. “Impeach Earl Warren” bumper stickers began to appear in the 1970s, as rising crime followed a string of Supreme Court decisions favoring criminal defendants and mandating, in far too many cases, the release of the guilty based on legal technicalities.
One of the most inglorious criminal-law excesses of the 1960s was the extension of the so-called “exclusionary rule.” Under the exclusionary rule, evidence collected in violation of a criminal defendant’s constitutional rights cannot be used in a court of law. It is a judge-made rule that has no basis in the text of the Fourth Amendment.
Moreover, it is a rule designed only to protect the guilty. Think about it: suppose the police illegally break down your door and search your home. If you’re innocent, they won’t find anything, and so the exclusionary rule does nothing to help you. But, if you’re guilty of a crime—let’s say they find a bloody axe with your fingerprints on it and a map of where you buried the bodies—then the exclusionary rule can spare you from being convicted.
Illegal searches are bad, and we need serious tools to prevent them—I’ve long helped lead the charge in the Senate for greater protection of our civil liberties and legal safeguards of the privacy rights of law-abiding citizens to be free from unreasonable searches. And we also need real remedies for those—especially the innocent—whose rights have been violated by overly aggressive law enforcement. But how is society benefitted from letting an axe murderer go free? Does it help his next victim, if the court turns a blind eye to clear evidence of guilt?
It was not until the landmark 1961 Supreme Court case of Mapp v. Ohio that the exclusionary rule came to apply not merely to federal courts, but also to state courts across the country. Mapp was an activist ruling. Nothing in the Constitution mandates that state courts must follow the exclusionary rule, and the Mapp Court didn’t purport to say otherwise. Instead, the Court just announced the new rule because the justices thought it was good policy (never mind the rising crime rates that followed the announcement of Mapp).
The harmful consequences of Mapp were made much worse five years later when the Court decided the 1966 case of Miranda v. Arizona. Today, Miranda is famous. If you watch Law & Order or any other cop show, you know the Miranda warnings by memory: “You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” What you probably don’t know is that the 5–4 majority in Miranda just made that up.
Nowhere in the Constitution is there any reference to the Miranda warnings. That familiar text isn’t anywhere in the Bill of Rights. It’s true that you have the right to remain silent (that is in the Constitution, the Fifth Amendment), and the right to an attorney (the Sixth Amendment), but for two hundred years police officers didn’t have to affirmatively tell you about those particular rights. Until the Court decided they should. Miranda was, in effect, legislation. The justices decided it would be good policy to mandate these warnings, so they wrote out the text and decreed that every police officer in America must follow their script.
Together, Miranda and Mapp have resulted in a great many violent criminals going free. Suppose officers apprehend a murderer and ask something like “Why’d you kill the girl?” And the defendant confesses, “because I wanted her dead.” Well, if the officer didn’t first say the Miranda magic words, the confession would likely be thrown out. And, if the confession led to the officer’s searching the killer’s apartment and finding the murder weapon, that too would be tossed out, under a doctrine known as “fruit of the poisonous tree.”
Over the decades, these two judge-made rules have unquestionably cost thousands of lives. When you let violent criminals go, predictably, more people get hurt and more people die. Given the soaring crime rates that Miranda ushered in, Ronald Reagan’s great attorney general and originalist legal scholar Ed Meese famously said that if he could overturn one case and one case only, it would be Miranda v. Arizona.
Such was the public outcry against Miranda that, just two years later, Congress overturned it. You probably didn’t know that either. But, in 1968, Congress passed 18 U.S.C. 3501, which on its face overturns Miranda. The statute was signed into law by President Lyndon B. Johnson, hardly a right-wing figure. It says that the test for whether a confession is admissible is not whether the Miranda warnings were given, but rather it is the test that courts had applied for two centuries—whether the confession is voluntary. In other words, if the police tie you down and beat you with rubber hoses to get your confession, then courts will exclude that confession because forced confessions are notoriously unreliable. (Under enough duress, many people will confess to just about anything.)
Then a curious thing happened: nothing. For the next three decades, practically everyone ignored that federal statute. As a matter of practice, the Department of Justice didn’t cite section 3501, federal and state courts continued to apply Miranda, and everyone effectively pretended that the federal statute didn’t exist.
Then, finally, in the 2000 case of Dickerson v. United States—thirty-four years after Miranda—the Court was forced to address section 3501. Dickerson came down while I was working on the 2000 George W. Bush presidential campaign. I remember literally laughing out loud when I read the opinion. Here’s why.
My former boss Chief Justice Rehnquist wrote the 7–2 majority opinion, which re-affirmed Miranda and struck down section 3501. That caused legal and media observers to be both amazed and bewildered, even though Rehnquist had been the leading judicial critic of Miranda for decades.
When the Chief passed away in 2005, the Harvard Law Review asked me to write a tribute to him. I did so happily, reflecting on him personally and on his incredible jurisprudential legacy. But I also decided to take the opportunity to explain what I believed was really going on in Dickerson. That, in turn, resulted in the author of one of the leading criminal-law textbooks quoting my remembrance of the Chief at length to help explain the decision.
For three decades, Rehnquist had been fighting to limit the harmful reach of Miranda. And he had enjoyed considerable success, convincing the Court over time to create a number of exceptions to that very broad rule. All of those exceptions were based on the proposition that Miranda was not required by the Constitution; instead, it was merely what the Court called a “prophylactic” (preventative) rule.
When Dickerson came to the Court, I believe the Chief took a measure of his colleagues—in particular Justice Kennedy and Justice O’Connor—and concluded that they simply were not going to vote to overturn Miranda. I have no doubt that, had there been four other votes to do so, the Chief would have enthusiastically provided the fifth vote to overturn Miranda. But the votes weren’t there. And that presented real danger. Because if the Chief voted to overturn Miranda, he would have joined Justices Scalia and Thomas in dissent. And that would mean that the majority opinion would be assigned by the senior justice in the majority, which would have been Justice Stevens.
Justice Stevens had been Rehnquist’s arch-foe for decades in the battle over Miranda. Over and over again, Stevens dissented from Rehnquist’s decisions limiting Miranda’s reach. If the Court were going to preserve Miranda, the only
way to do so was to strike down section 3501. And the only basis to strike down a federal statute is that it’s unconstitutional. Which would mean, necessarily, that Miranda is required by the Constitution. Had the Chief voted in dissent, Justice Stevens likely would have assigned the opinion to himself and written something like the following: “The Court has many times stated that Miranda is merely prophylactic. But, over the decades, it has become interwoven into our constitutional fabric. And so today we make explicit what was implicit in our prior cases: Miranda is required by the Constitution. And so we strike down section 3501.”
That holding would likely have set the stage for unwinding every single exception to Miranda that Rehnquist had spent thirty years carefully crafting. It would have resulted in many more guilty criminals being released and many more lives being lost.
To avoid that threat, I believe, the Chief decided to vote with the majority and author the opinion himself. And his opinion, as I read it, simply declares the following three propositions: (1) Miranda is not mandated by the Constitution, but is merely prophylactic, meaning that all of Rehnquist’s carved-out exceptions therefore remain valid; (2) the LBJ-era federal statute purporting to overrule Miranda is not valid and is hereby struck down; (3) do not ask me why and do not ever, ever cite this opinion for any purpose whatsoever.
That’s why I laughed out loud when I read it.
* * *
When it comes to criminal law, capital punishment has long been one of the most divisive questions. It’s an issue about which reasonable people can, and often do, disagree. Some argue that capital punishment is unnecessary, is ineffective, is too costly, and results in too long of a delay to have a sufficient deterrent effect. Or they argue that taking a life, in any circumstance, is always unjust and that the risk of error is too great. I respect those views. Others argue that capital punishment is just, that it should be reserved for the gravest of crimes, that it can and does have a significant deterrent effect on would-be murderers, and that the biblical principle of “an eye for an eye and a tooth for a tooth” embodies a fundamental tenet of justice.
Personally, I am in the latter camp. I believe in capital punishment. I believe in carrying out justice for those who commit unspeakable crimes, retribution for those who have been horribly victimized, and strong deterrence for the community to prevent the horrific crime from happening again. But under our constitutional system, you need not agree with me. You are free to arrive at a different judgment that suits your own preferences and your own set of morals.
Indeed, when I was a law clerk for Chief Justice William Rehnquist, both of my co-clerks were vocally opposed to the death penalty: one, a Democrat who leaned center-left on most policy issues, and the other, a Catholic conservative who is now a professor at Notre Dame Law School and opposed the taking of any human life. The Chief and I both disagreed and believed that capital punishment is just—and, furthermore, that the Constitution unequivocally permits it.
Indeed, during the course of my clerkship I recall instances when each of my co-clerks fervently made the case to the Chief for why he should intervene and stop the execution of a particular murderer. Each time, the Chief would patiently listen, and then with a quizzical look reply, “Why would I want to do that?”
If you oppose capital punishment, there is a constitutional avenue for you to promote your views. Make the case to your fellow citizens, to elected legislatures, and convince them; move the hearts and minds needed to democratically change the law. And, following that path, twenty-two states, in addition to Puerto Rico and the District of Columbia, have now outlawed the death penalty. So in those states, capital punishment is no longer allowed. Other states, including my home state of Texas, have instead taken the view that capital punishment saves the lives of the innocent by punishing the very worst offenders and deterring future crimes. Such is the beauty of our Constitution’s federalist structure of dual spheres of sovereignty, in which the several states can each adopt the policies their citizens prefer.
For four years, however, the Supreme Court shut it all down. In 1972, in Furman v. Georgia, the Court struck down all death penalty laws across the United States as inconsistent with the Eighth Amendment’s prohibition on “cruel and unusual punishments.” This was notwithstanding the fact that the plain text of both the Fifth and Fourteenth Amendments indisputably recognizes the authority of the government to “deprive” a citizen “of life” so long as “due process of law” is afforded. That should be no surprise, given that, at the time the Bill of Rights was drafted and adopted and at the time the Fourteenth Amendment was drafted and adopted, capital punishment was widespread for the very worst crimes. Nonetheless, despite the fact that the Constitution itself refers to capital punishment explicitly and repeatedly, in Furman, five activist justices declared that capital punishment was unconstitutional.
In Furman v. Georgia, four justices dissented, including my future boss, William Rehnquist. He had just arrived on the Court, and he strongly disagreed with the activist judges’ conclusion that it was not the text of the Constitution that governed, nor the two centuries of legal practice in the United States, but rather what they declared to be their own “evolving standard of decency.”
To be sure, the Eighth Amendment does prohibit “cruel and unusual punishments.” So if Congress or a state legislature were, for example, to enact a law providing for the public flogging and then drawing and quartering of jaywalkers, any court in the country would rightly strike that down as both “cruel” and “unusual.” But as we have already seen, the Fifth Amendment, adopted at the very same moment the Eighth Amendment was adopted, explicitly recognizes capital punishment as within the proper authority of government. So whatever one might argue the Eighth Amendment prohibits, it cannot reasonably be construed to prohibit what the Constitution explicitly allows.
Furman v. Georgia remained Supreme Court law for four years, from 1972–1976. And in those years, thirty-seven states enacted new death penalty laws in an effort to comply with the new standard set out by the Court. Then, in 1976, in Gregg v. Georgia, the Court reversed course and once again deemed capital punishment to be constitutionally permissible. In the intervening four years, countless murderers had had their sentences reduced from death to lesser sentences because of the Court’s reckless judicial activism in Furman.
When it comes to the death penalty, Furman v. Georgia began a five-decade journey into gamesmanship by liberal judicial activists. Many of the games that are played occur just below public view. Every time across this country that a criminal defendant is to be put to death, the Supreme Court justices stand prepared for the nearly inevitable torrent of last-minute appeals. In many states, executions are carried out at 12:01 a.m., so that, if there is a judicial intervention, there are a full twenty-four hours in that day before the execution warrant expires.
As a result, when I was clerking at the Supreme Court, whenever an execution was scheduled, a law clerk from each of the nine justices’ chambers would remain at the Court until the execution was carried out. For executions scheduled in states on the West Coast, that typically meant remaining at the Supreme Court until 3:00 a.m. local time. Then, typically at 10:00 p.m., or 11:00 p.m., or midnight, or 1:00 a.m., a last-minute appeal would be sent over—often, in those days, on the fax machine. The appeal would be distributed to each of the nine Justices’ chambers and, if you were the clerk for the justice who had responsibility for the geographic region in which the execution was set to occur, you were charged with drafting a memo summarizing the appeal. So late at night, sitting at your computer, you would hastily write a memo considering the arguments on both sides and recommending a response. You would then call your justice, often waking him or her up after he or she had gone to sleep, and over the telephone you would explain the substantive issues contained in the appeal.
Far too many of the appeals were long and complicated and were deliberately filed at the last minute so as to try to force a delay of the execution. The st
rategy, in effect, was to throw so much material at the justices and their law clerks so as to force them to throw up their hands and say, “We need more time to figure this out, so let’s delay the execution.” These last-minute appeals were not typically driven by late-breaking news. Nor, in the vast majority of circumstances, did they contain even the slightest allegation of innocence. Instead, lawyers for capital murderers would raise all sorts of technicalities which activist judges could often be counted to seize upon because they did not personally support the death penalty.
One case that illustrates the gamesmanship that pervades the federal judiciary concerns a convicted murderer from Arizona named Luis Mata. Ironically, his name was Spanish for “he kills,” which in his instance, was very much the case. In 1977, Mata was tried and convicted by a jury of his peers and sentenced to death. Following extended state court litigation, Mata filed a federal habeas corpus challenge in 1985, which the federal district court took over two years to assess. At the end of those two years, the federal district court rejected his claim in a straightforward opinion on the substantive legal merits of his case.
Mata appealed to the Ninth Circuit of Appeals, which is famously the most liberal federal court of appeals in the country. The Ninth Circuit took another four years to consider the appeal and then in July 1991 rejected it on the merits. Mata filed a petition for rehearing, asking the Ninth Circuit to revisit its ruling. The Ninth Circuit took another year and a half before rejecting the petition for rehearing in November 1992. All told, activist judges had managed to delay the execution of Mata’s sentence by seven and a half years, even though he had no valid legal claims and they had no argument to the contrary. Finally, in 1996—more than nineteen years after he brutally raped and murdered twenty-one-year-old Debra Lopez—Mata was put to death. Simply by dragging their feet and engaging in deliberate delay and destruction, activist judges frustrated the faithful execution of the law.