The history of our law is full of wonderful stories - not the least of which is the case of Gideon v. Wainwright a case in which a pro se (one who represents him or herself) criminal defendant fought for years to establish a right we all now take for granted - the right of an indigent accused to be afforded the same basic Sixth Amendment right we all theoretically posess - the right to be represented by counsel.
Yesterday - in an opinion that expressly overrules prior precedent - the SCOTUS - in a 5-4 decision - (No prize for identifying the 5 as Scalia, Thomas, Roberts, Alito and Kennedy) overruled an extension of the Sixth amendment jurisprudence holding and decided that Michigan v. Jackson is overruled. Jackson stood for the proposition that "once a criminal defendant invokes his right to counsel at an arraignment or similar proceeding" the police are forbidden to initiate interrogation.
In what must have been a moment full of pathos - Judge Stevens read aloud his dissent. Stevens was the author of the 1986 Jackson opinion. More below.
While I do not have any special expertise in criminal law - no one else seems to have diaried this - and as I read the opinion the SCOTUS has gone out of its way to weaken protections for those least conversant with their Constitutional protections.
As I appreciate it - dissents are rarely read aloud. A Justice does so to call attention to the gravity of the mistake he or she perceives is being made. Yesterday gave rise to such a moment.
Imagine you were in the great courtroom and all went silent as Justice Stevens began to read his dissent in the case of Montejo v. Louisiana
"The Court, on its own iniative and without any evidence that the longstanding Sixth Amendment protections (have caused any difficulty in the criminal justice system rejects explicity controlling authority) which rests upon a misinterpertation of Jackson's rational and a gross undervaluation of the rule of stare decisis."
As I appreicate what happened even where an accused asks for counsel - the police may begin interrogation without the counsel present. I strongly suspect that the scope for subterfuge and ruse by the police has been widely expanded - and will impact most strongly those least familiar with their constitutional protections.
Also - let it be said clearly - speak not for a moment about "conservative judicial restraint." The blithe - even contemptuous disregard for precedent is chilling to those of us that hold to the under siege principle that the law can and does make sense. To what today is called a conservative is the arrogance of power - to sweep away that with which they emotionally disagree and substitute their own personal whim.
Somewhere - Gideon weeps - for the beneficiaries of his ordeal have been undermined.