Comparing criminal procedure approaches under Warren and Rehnquist

Decisions of Rehnquist & Warren

The field of constitutional law, at least in the area of criminal procedure, has been an interesting study for the past fifty years. Unlike other areas of the law, the study of criminal procedure has undergone major transformations as a result of the decisions of the last three courts, the Warren, Burger and Rehnquist courts. These three courts have changed the legal landscape in the cases involving criminal procedure and, in the process; have created a great deal of controversy (Bloom, 2010).

The application of the Bill or Rights to the states has been an acrimonious issue in the U.S. Supreme Court for a number of years. It all began when the Warren Court began applying the Fourth, Fifth, and Sixth Amendments directly against the states, under a doctrine that became to be known as selective incorporation. The Warren Court used the selective incorporation method to apply nearly all the rights protected in the Bill of Rights to the states (Israel, 1977). It created what many have referred to as the "Due Process Revolution (Fliter, 2001)." Through a series of cases that altered the laws in the area of criminal procedure, the Warren Court established the foundation of modern criminal procedure.

The Warren Court's criminal procedure decisions paved new ground but were not always well received by the legal community who argued that the Court's decisions were too often lacking firm legal support and reasoning. The rulings were not based on earlier decisions and were in direct conflict with lower court decisions. Politically, many of the Warren Court's decision were extremely unpopular and a segment of society argued that the result of the Court's decisions was to free too many guilty individuals without good reason. Unfortunately, many of those freed were murderers and rapists.

Warren and the other members of his Court were insulated under the Constitution from political pressure and, as a result, his Court continued to render its reform minded decisions in the area of criminal procedure. As time passed those who took issue with the Warren Court's decision began to organize politically and to plan their strategy to minimize the effect of Warren's ruling. Warren's eventual death and the election of Richard Nixon as President brought in a new era for the U.S. Supreme Court. Nixon had run his national campaign on a "law and order" platform and had promised significant changes in the makeup of the Supreme Court. In this regard, Nixon nominated candidates for the Supreme Court, when vacancies occurred, that were seemingly more conservative but in hindsight how much different were the Burger and Rehnquist Courts that followed the Warren Court?

For over thirty years the Burger and Rehnquist Courts have attempted to clarify and unravel the decisions rendered by the Warren Court. The Warren Court issued a number of cases related to what became to known as the "exclusionary rule" that were not clearly defined but that resulted in creating some serious problems for the nation's police agencies and prosecutors. Thousands of criminal defendants benefited from having crucial evidence excluded in their prosecutions resulting in their either being convicted of lesser offenses or a dismissal of all charges. Needless to say, these developments were not well received by the public and it was expected that the Courts following the Warren Court would clarify this issue.

When Associate Justice William Rehnquist was elevated to the position of Chief Justice in 1986 he was expected to lead the Supreme Court's turn to the right. In an interview occurring a few weeks after his appointment as Chief Justice, Rehnquist stated that he wanted the Supreme Court to call "a halt to a number of the sweeping rulings that were made in the days of the Warren Court (Jenkins, 1985)." Legal experts, however, have argued that the Rehnquist Court failed to carry out this mission. Instead, they point out that the Rehnquist Court served to only confirm most of the Warren Court's jurisprudence.

In the area of criminal procedure the Warren Court is identified with four major cases: Mapp v. Ohio (Mapp v. Ohio, 1961) Gideon v. Wainwright (Gideon v. Wainwright, 1963), Miranda v. Arizona (Miranda v. Arizona, 1966), and Terry v. Ohio (Terry v. Ohio, 1968). These cases grouped together form the basis for the application of the doctrine known as the "exclusionary rule" and were the main focus of the Warren Court detractors. In Mapp, the Warren Court laid the basis for the exclusionary rule by holding that "all evidence obtained by searches and seizures in violation of the Constitution is, by the Fourth Amendment, inadmissible in a state court." Rehnquist was highly critical of the Supreme Court's decision in Mapp when he served as the Assistant Attorney General under President Nixon and when he assumed his position as associate justice he was committed to reversing the decision but he did not have an opportunity to express his position until the 1979 case of California v. Minjares (California v. Minjares, 1979). In Minjares, Rehnquist wrote a dissent that essentially reiterated the views expressed by the dissenters in the Mapp that argued that it made no sense to give defendants windfalls by excluding relevant and competent evidence. Earlier, Rehnquist expressed his general distain for the exclusionary rule through his dissent in the case of Stone v. Powell when he declared that the exclusionary rule "is a judicially created remedy rather than a personal constitutional right (Stone v. Powell, 1976: p.511)."

Based on his comments in Minjares and Stone, it was expected that Rehnquist would make a concerted attempt to either limit or overturn the various cases issued by the Warren Court that formed the basis of the exclusionary rule. Unfortunately, for those who espoused Rehnquist's viewpoint, the majority of the members of the Rehnquist Court were never convinced to adopt Rehnquist's view. Instead, the Rehnquist Court never overturned the Warren Court decisions and modified the practical effects of those cases only moderately.

The second landmark case issued by the Warren Court in the area of criminal procedure was Miranda v. Arizona. Miranda was actually a combination of two cases Miranda and Escobedo v Illinois (Escobedo v. illinois, 1964)that set the guidelines of custodial interrogation. These two cases altered the system of police interrogation remarkably but the results of these decisions have been criticized heavily but the Rehnquist Court was not able to either overturn the decision in Miranda or alter its holding in any significant way. The only real substantive change fashioned by the Rehnquist Court was in the case of Colorado v. Connelly (Colorado v. Connelly, 1986). In Connelly, the Rehnquist Court did marginally limit Miranda by holding that a defendant that whose "rational intellect" and/or "free will" may have been interfered with because of his mental state did not invalidate his capacity to confess to a crime. Connelly was only a slight modification of the Miranda decision and, despite the rhetoric offered by Rehnquist prior to his being named Chief Justice and his dicta offered in dissents in cases when he was an associate justice, it was the only limitation offered by either the Burger or Rehnquist Courts.

The Rehnquist was actually offered an opportunity to either overturn or limit the scope of Miranda when it addressed the issue of whether or not the U.S. Congress should have the power to overrule Miranda when the Supreme Court agreed to hear the case of Dickerson v. United States (Dickerson v. United States, 2000). In Dickerson, the Supreme Court ruled, through a decision written by Rehnquist himself, that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. Miranda announced a constitutional rule that Congress may not supersede legislatively. We decline to overrule Miranda ourselves." Dickerson appeared to offer the Rehnquist Court with the perfect opportunity to overturn Miranda but, surprisingly, said Court backed down from what most thought was the prevailing philosophy of the Rehnquist Court and merely ratified what the Warren Court had already decided.

Another example of how the Warren Court and the Rehnquist Court's decision were only marginally different despite the wide variations in their basic political and judicial philosophies is in their respective decisions in Terry v. Ohio and Atwater v. Cty of Lago Vista (Atwater v. City of Lago Vista, 2001). The Warren Court's ruling in Terry was actually an attempt by the Warren Court to limit the scope of one of its own decisions on the issue of what constituted a reasonable suspicion by a police officer in executing a warrantless search and seizure. The Court's earlier decision in Mapp had been attacked as being too broadly interpreted and the Warren Court, in response to said criticism, allowed warrantless searches when the investigating officer had a reasonable suspicion but the search must be limited in scope and must be for purposes of the officer's protection. In Atwater, the Rehnquist marginally expanded the holding in Terry by allowing warrantless arrest for minor misdemeanors when the investigating officer has a probable cause for believing that the defendant has committed a criminal offense. Atwater held that such arrest does not violate the provisions of the Fourth Amendment.

As indicated earlier, it was expected that the Rehnquist Court would mark the dawning of a new era in conservatism in decisions originating from the U.S. Supreme Court. Chief Justice Rehnquist had indicated his strict conservative leanings in the decision that he had participated in while he was an associate justice in the Burger Court and the fact that he was appointed to be Chief Justice by conservative President, Ronald Reagan, was thought to be a foreshadowing that Rehnquist would exercise extreme conservatism as Chief Justice. Additionally, Rehnquist followed Chief Justice Burger who most experts argue successfully retreated from the criminal procedure decisions of the Warren Court. These same experts predicted that the Rehnquist Court would be worse for criminal defendants than was even the Burger Court.

The reality, however, is that the Rehnquist Court never successfully altered any of the major Warren decisions in a way that substantially changed the rights of criminal defendants. Statistically, the Rehnquist Court actually found in favor of criminal defendants in appeals brought before it. In this regard, the Rehnquist Court issued few cases that can be considered in the same light as those issued by the Warren Court. The Rehnquist Court seemed content to clarify the landmark decisions rendered by the Warren Court as opposed to issuing landmark cases of its own. This position by the Rehnquist Court disappointed the conservative sector but it typified the attitude of the Court in the latter years of the Court's term. For example, the Rehnquist Court was presented with several search and seizure cases but in half of them the Court produced decisions that favored, in whole or in part, the positions offered by the criminal defendants. For example, in the case of Minnesota v. Dickerson, the Rehnquist Court ruled that the continued search of a suspect on the basis of a lump in his pocket that was determined not to be a weapon was unconstitutional (Minnesota v. Dickerson, 1993). Conservative followers of the Court wanted it to rule the search constitutional because it resulted in the finding of bag of cocaine but the Court ruled that once the officer's safety was no longer in question any further search was unwarranted (Hurley, 1993). The holding in Dickerson, although not what Conservatives might have wanted, remained consistent with the Warren Court's holding in Terry.

For the most part the Rehnquist Court did not stray far from the dictates established by the far more liberal Warren Court but there were some minor cases where it did demonstrate its Conservative leanings. In Arizona v. Evans, the Court refused to suppress evidence improperly seized due to a clerical error (Arizona v. Evans, 1995), and allowed detention and search of an individual based on suspicion of a civil traffic violation in the case of Whren v. United States but for the most part the Rehnquist Court failed to make any serious inroads into the rights expanded by the Warren Court (Whren v. United States, 1996).