Justice for All (94 page)

The Court's rulings in
South Carolina v. Katzenbach
and
Harper v. Virginia Board of Elections
upheld the Voting Rights Act against relatively easy challenges—brought by Southern states in defense of discredited practices. The third of the Court's three major voting cases that term turned on a more novel question and arose from outside the South. In 1922, the State of New York imposed a requirement for voting—namely, that any voter must be able to read and write English.
⁴¹
Section 4(e) of the Voting Rights Act, however, stated that any person who had completed the sixth grade in any American state, territory, District of Columbia, or Puerto Rico was entitled to vote even if he or she was not literate in English. That language was written specifically to extend the franchise to the hundreds of thousands of Puerto Ricans who had immigrated to the United States—largely to New York—many of whom were literate but not in English. It was not the result of extensive congressional analysis but rather a floor amendment introduced by Senator Robert Kennedy and accepted into the act without hearings.
⁴²

For the Court, the difficulty in striking New York's law in favor of the Voting Rights Act requirement was that the Court itself had upheld racially neutral literacy tests as a valid condition for voting. “The ability to read and write,” the Court unanimously ruled in 1959, “. . . has some relation to standards designed to promote intelligent use of the ballot. . . . We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.”
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In a footnote to that opinion, the Court specifically recognized that of the nineteen states that required literacy among voters, some went further and required a demonstration of English literacy and aptitude.
⁴⁴

So if literacy was an acceptable condition of voting and states were allowed to make command of English a requirement, how could Congress now undo the work of the Court? And if Congress could undo that work, what would prevent it from trying its hand at other areas of constitutional doctrine? It was one thing to extend the vote, another to open the door to congressional meddling in the Court's constitutional domain.

Black had dissented from the two voting cases coming from the South, but he was more sympathetic now that the challenged state was New York. Seeing the opportunity to bring Black home to the liberal majority, Warren asked him to take the case. Black declined, saying he feared his view of the disputed section of the act would not command a majority of the Court.
⁴⁵
Faced then with the doctrinal challenge posed by the complexity of the case, Warren instead assigned the opinion to Brennan, who undertook that assignment with substantial help from Black. Brennan managed to protect both the Court and Puerto Rican voters by emphasizing the vote as an instrument of civic authority. Voters have power, and power secures for those voters the blessings of their government; without power, those blessings would fall elsewhere, and for that to happen to an ethnic group was intolerable and unconstitutional—well within the power of Congress to eliminate. “This enhanced political power will be helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community,” Brennan wrote. The disputed section of the act thus “enables the Puerto Rican minority better to obtain ‘perfect equality of civil rights and the equal protection of the laws.' ”
⁴⁶
That satisfied half the Court's mission—extending the vote. But could Congress, using its power to enforce the equal protection clause, pass other legislation that the Court would disapprove of? Harlan raised that question in dissent, and Brennan answered with a footnote stressing that Congress had the right only to “enforce the guarantees of the Amendment.” It had no comparable right to “restrict, abrogate, or dilute these guarantees.”
⁴⁷
If that was half a gift—permitting Congress to expand rights but not to contract them—it nevertheless was a reminder that the Warren Court was not bent on preserving for itself the entire domain of civil liberties; it openly invited Congress to come along, just not to impede.

The three voting rights cases, combined with
Baker v. Carr
and
Reynolds v. Sims,
completed the Warren Court's treatise on the centrality of the franchise in modern America. States were not to block voters from casting ballots—not because of race, illiteracy, language deficiency, or poverty. Once those votes were cast, they were to be counted equally; states were not to create districts that gave some votes more weight than others. Voters were to have power. They were to share it equally with one another, and they were expected to use it to secure the benefits of the Great Society even then taking shape in the White House and in the halls of Congress. Congress could help that process along but could not stand in its way. Warren, who won seven elections himself and lost only when hooked to doomed Tom Dewey, now placed his full faith in the ballot to extend democracy and spread its benefits across the land. Together, the three voting cases also demonstrated the extent to which Warren commanded his Court and worked the subtleties of his position. When the nation needed an affirmation of the Voting Rights Act, Warren assigned the opinion to himself, ensuring that the case would bear the signature of the Chief Justice of the United States. When the poll tax required summary burial, he assigned it to Douglas, whose brusque intolerance of the tax was conveyed in his writing. And when the issues out of New York posed the opportunity to reunite the old liberal majority, he reached first to Black; failing there, he knew he needed doctrinal subtlety, and he found it where he usually did, in Brennan.

Egalitarianism underlay Warren's belief in the power of voting and the extension of the franchise. But the idea of equality, as Cox perceived, “is not easily cabined.” The insistence on equality started for Warren's Court with schools before it moved to voting. Then, even as he imposed his notions of fairness and equality into state and local elections, Warren was moving to other areas as well. As far back as 1956, the Warren Court had held that indigent defendants were entitled to a free transcript of their cases on appeal.
⁴⁸
Mapp v. Ohio
in 1961 had barred the states from admitting illegally seized evidence;
Gideon v. Wainwright
in 1963 had required all states to provide indigent defendants with lawyers;
Douglas v. California,
decided even before
Gideon
but held over in order to allow then lawyer, now Justice Fortas to make his famous argument, required the states to provide counsel for appeal in addition to trial; and, most recently,
Escobedo v. Illinois,
decided in 1964 and written by the newly departed Goldberg, had barred the use of confessions when extracted from a suspect who asked for a lawyer and was denied one. Some of those cases had been decided by close votes, but not once had Warren dissented.

In August 1965, when Warren's new clerks assembled in the Court, he told them he had a special assignment for them that year.
Escobedo,
the chief said, had laid down new law on confessions, but he wanted now to clarify that ruling. So he instructed his clerks to scour any cases coming to the Court for ones that might help the Court spell out its principles on the admissibility of confessions taken by police of suspects in custody. There were, one of Warren's clerks, Kenneth Ziffren, recalled, 200 to 300 that touched on some aspect of that issue, but the clerks were seeking cases that were uncontaminated by other factors, such as searches and seizures that introduced side elements into the confession itself. In the end, they settled on four, and suggested as the lead case
Miranda v. Arizona
.
⁴⁹

Ernesto Miranda was not a sympathetic defendant. Twenty-three years old and of limited intelligence, he tried three times in late 1962 and early 1963 to rape young women in Phoenix, twice giving up after they struggled and then succeeding on the third attempt. One victim described the car of her assailant, and a few days after the attack, her cousin spotted a vehicle that seemed similar. She hastily jotted down the license plate as the car drove off, then gave it to the detective handling the rape case. The detective found a car similar to the description and with a license plate number that was close. He called the owner, who said her boyfriend occasionally borrowed it. Her boyfriend, she added, was named Ernesto Miranda. The detective brought Miranda in for questioning, and put him in a lineup. The witnesses could not be sure, but when Miranda asked, “How'd I do?” the detective told him they had picked him as the assailant. “Well,” Miranda replied, “I guess I'd better tell you about it then.”
⁵⁰
His confession was admitted against him at trial, and he was convicted in two separate trials of robbery, kidnapping, and rape. He was sentenced to 20-30 years for kidnapping and rape, and to 20-25 years for stealing $8 from one of his victims.

During Miranda's questioning by police, no lawyer had been present, not because he had asked for one and been refused—the case in
Escobedo
—but because he did not know he could have one if he asked, and thus did not think to request one. For the Court, the question was whether Miranda had a right to know his rights and, if so, whether the police had the obligation to tell him.

In essence, the Court was asked to consider the interaction between the Sixth Amendment's right to counsel—a right this same Court had required of all states—and the Fifth Amendment's protection against self-incrimination. If a suspect could be cajoled by police into confessing before he ever saw a lawyer or knew that he had a right to meet with one, the later appointment of counsel was meaningless—the case already was lost. Warren knew that well from two angles: As a prosecutor, he had put the
Point Lobos
defendants away after extracting a confession from a suspect unrepresented by counsel; as a justice, he had seen rough police tactics rewarded with convictions and had grown increasingly unsympathetic. He had, by his reckoning, voted the wrong way in
Irvine,
condoning invasive police misconduct in a state case. A decade later, the fullness of his change of heart had come in
Mapp
and then
Escobedo
. Now he was prepared to go further still. At the conference following the argument in
Miranda,
Warren read a long statement outlining his views and then assigned the opinion to himself.
⁵¹

Warren rarely drafted in his own hand. After
Brown,
he had come to rely more heavily on his clerks, generally dictating to them his views of a case and the basis upon which he wanted the decision to rest. He then turned over the writing to them, and though he closely reviewed their work, he largely left drafting to them.
Miranda
was different. Warren wrote an extensive outline himself, drafting by hand in pencil on yellow legal tablets, just as he had in
Brown
. Although rough, it included the principal elements of what would become the final decision—the requirement that police warn suspects of their right to remain silent, of their right to consult with a lawyer, of their right to have a lawyer provided them if they could not afford one. The document was far from polished—Warren misspelled “Escobedo,” putting it down as “Escobido”—but it was a solid start.

All three of his clerks that year contributed their thoughts in memos, and then in typewritten drafts circulated among themselves but not yet to the brethren. On May 9, their work was sufficiently developed that Warren and his clerks took one copy, still not to the conference but just to Brennan, in order to sound him out on the developing opinion.
⁵²
What they showed Brennan reflected Warren's initial impression of the case, which is that it turned on the Sixth Amendment and concluded that Miranda's right to a lawyer was violated by the police refusal to tell him he had such a right and building that ruling largely as an extension of Goldberg's work in
Escobedo
. Clerk Kenneth Ziffren had some misgivings about that approach, as did Brennan.
⁵³
For them, the right of Miranda's that was violated was not so much his right to a lawyer—he had been represented at trial—but his right not to be forced to be a witness against himself. By the time Miranda got his lawyer, he had signed a confession. There was little left to do to save him. Miranda's casual and unknowing abdication of his Fifth Amendment rights thus made the effective exercise of his Sixth Amendment rights impossible. Brennan expressed his thoughts to Warren in a memo on May 11, and Warren agreed to rewrite portions of his opinion.
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A smarter criminal would have known that he had a right to a lawyer, and, important from Warren's perspective, a wealthier one probably would have as well. What thus prevented Miranda from enjoying his constitutional rights was ignorance—ignorance closely related to poverty. That was the key, as it offended Warren's sense of egalitarianism; if a Southern state could not deny a poor voter access to the polls with a poll tax, how could police deny a suspect knowledge of his rights because the suspect was too poor and ignorant to protest? Prodded by his clerks and his colleague to focus on the Fifth Amendment basis for the opinion, Warren returned to work on it. What he produced was an opinion that seemed nearly as much the work of a governor as that of a justice—a ruling notable mainly for the extent to which it moved beyond constitutional analysis to the drawing of clear rules for police.

Warren tried at the outset of his opinion to deny its novelty—“our holding is not an innovation in our jurisprudence, but is an application of the principles long recognized and applied in other settings,” he professed.
⁵⁵
And in one sense, he was right, as the ruling attempted to make
Escobedo
a workable doctrine in the context of real-life police interrogation. Warren's opinion explored the atmosphere of the interrogation room, its isolation from the world, the oppressive psychological advantage that it conferred on the police officer, its encouragement of deceit and withholding by authorities eager to extract from the suspect the words that would convict him. Warren summarized police manuals and cited their encouragement of officers to use psychological advantage. “Even if he fails to do so,” one police text advised, “the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense ‘out' at the time of trial.”
⁵⁶
Such overt reliance on trickery depressed and offended Warren. If Warren's irritation with the police was evident, however, his constitutional basis for curbing them was less clear.