Where Do You Draw The Bright Line?

For the second time this week, the Supreme Court issued a ruling applying its famous Miranda ruling. A lower court had ruled that because two years had elapsed between a suspect first invoking his right to ask for a lawyer and his decision to waive his Miranda rights and admit a crime, his confession was admissible. This holding is reasonable, and the fact that crime he confessed to was molesting his 3-year-old son made the outcome overdetermined: the Supreme Court’s unanimously held that the confession was admissible. The Court also held that an initial invocation of Miranda rights essentially expires after 14 days.

Two concurrences in the case, however, point to an interesting issue about how to apply broadly-worded constitutional rights. When applying a right like the Fifth Amendment’s right against self-incrimination, some (often called “minimalists”) argue that appellate judges should issue narrow rulings based on the particulars of a case, while others argue that appellate jobs should create clear rules that will govern a wide array of cases. Antonin Scalia is the Court’s strongest advocate for creating “bright-line” rules that minimize judicial discretion. (It should be noted that this doesn’t make preferring non-minimalist jurisprudence is inherently “conservative”; Miranda itself is also an example of the Court replacing a standard that gave wide discretion to other judges with a relatively clear rule.) Scalia’s position is attractive in many respects, and all things being equal I’m inclined to agree that it’s preferable for the Supreme Court to set rules that are as clear as possible.

The twin concurrences of Stevens and Thomas, however, do point to a paradox inherent in Scalia’s approach. One of the most important selling points of creating clear rules is that giving excessive discretion to lower court judges can make their rulings essentially arbitrary. One of the most significant drawbacks to the approach is that the rules themselves can be arbitrary; as Thomas argues, the Court “does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the ‘closest possible fit’ with the Self-Incrimination Clause.” And the potentially arbitrary nature of the rule can be seen by comparing the opinions of Stevens and Thomas. The former argues that the 14-day period is probably too short and fails to consider other relevant factors, while Thomas at least implies that invocations of Miranda rights should expire as soon as custody is broken. This isn’t to say that the Court’s decision to create a clear rule is wrong, just that any means of applying a general right to specific cases has its strengths and weaknesses.