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How the Roberts Court works

roberstdeck.JPG

Dahlia Lithwick and Barry Friedman have an important article explaining the strategies the Roberts Court is using to push the law to the right without the public really noticing. For instance, there are plenty of decisions conservatives would like to roll back that are wildly popular. Miranda rights, for instance. Going at them directly would cause a public outcry. So you don't go at them directly. You go after child molesters instead:

To do their whittling without getting caught, the Roberts Court has been brilliant at stacking the deck — choosing to hear only Miranda cases in which what the police did is so sympathetic, or what the suspect did so awful, it's impossible to side with the suspect. Then, while you're rooting against the suspect, they're getting rid of the rule that you thought you liked.

Take last term's Maryland v. Shatzer: Shatzer was accused of molesting his 3-year-old son by forcing him to perform fellatio and by masturbating in front of him. (You already hate the guy, right?) When the cops come to question Shatzer, he asks for a lawyer. The way Miranda works is that as soon as a suspect asks for a lawyer, all questioning must end, until he sees a lawyer. But in this case, the police get new evidence and come back and question Shatzer again, and he says something incriminating. Ordinarily his statement would be inadmissible: Miranda was violated. But — and here's where the court's genius at choosing cases shines through — it turns out Shatzer is already in prison for another crime when police question him the first time, and they don't come back to question him again for almost three years. They read him his rights again, and this time he blabs.

Can the Miranda rule possibly prevent police from questioning a suspect three years later? On these crazy facts, basically the entire court — all nine justices, conservatives and liberals alike — disagree with Shatzer's claim. You might say, who cares: Shatzer deserves what he gets and worse. But that's the point: It isn't just Shatzer who gets it. All of us do. Shatzer gets more time, and the rest of us get the magic disappearing Miranda rule. Many experts who follow the court closely on this issue will tell you that Miranda is today a façade. It looks nice from the street, but there is virtually nothing behind it.

That's strategy #1: 'Stacking the deck.' Lithwick and Friedman mention four more. This is one of those 'read the whole thing' situations.

Photo credit: By Michael Conroy/Associated Press

By Ezra Klein  | October 4, 2010; 2:12 PM ET
Categories:  Legal  
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Comments

You are assuming that Miranda is, in fact "wildly popular". It would be interesting to see the poll results to a question about whether or not we should get rid of the Exclusionary Rule.

http://en.wikipedia.org/wiki/Exclusionary_rule

Posted by: jnc4p | October 4, 2010 2:40 PM | Report abuse

i was honestly wondering why liberal media hadn't attacked Justice Roberts yet (especially after the incident at the State of the Union address).

Posted by: visionbrkr | October 4, 2010 2:46 PM | Report abuse

There is no liberal media.

Anyone who thinks that is an idiot.

There is a corporate media however. That's why the Roberts court and tea partiers and climate skeptics are media darlings, and why Obama is painted as an anti-business Muslim Kenyan who hates white cops.

Posted by: lauren2010 | October 4, 2010 2:52 PM | Report abuse

"You are assuming that Miranda is, in fact "wildly popular". It would be interesting to see the poll results to a question about whether or not we should get rid of the Exclusionary Rule."

In the article Ezra links to, it states, "polls show about 80 percent of the country approves of the rule."(referring to Mirand). I don't think Ezra is assuming the popularity of Miranda rights as much as he's reiterating a point (backed up by polls) made in the article itself.

Posted by: Nylund154 | October 4, 2010 2:55 PM | Report abuse

lauren,

really?

Slate
The New Republic
FireDogLake
certain segments of MSNBC
Huffington Post
Real Time with Bill Maher


just to name a few.

should i go on or do you want to retract your statement.

I don't dispute there's a vast and well funded right wing media but don't expect people to believe there's not a left wing media that has an agenda as well.

Posted by: visionbrkr | October 4, 2010 3:05 PM | Report abuse

@visionbrkr

None of those whom you listed are major media outlets. "Certain segments of MSNBC" is not MSNBC. Not only that I'd hardly call them liberal by any stretch (corporate is more apt). None on your list even come close to the power of Fox News (not some of Fox News, ALL of Fox News), Rush Limbaugh, Glenn Beck, etc. etc.

2 points for Lauren.

Posted by: dkinmd | October 4, 2010 3:11 PM | Report abuse

@dkinmd,

Neither she nor I put pre-requesites on the fact that it be major or have a certain audience size. I stated that I "wondered why the liberal media hasn't attacked Justice Roberts" before and outside of the Citizens United cases they really haven't. Maybe now with the court opening up its calendar they will. But its not as if the court hasn't been slanted to the right for a very long time.

Her argument was that there was NO liberal media and I provided proof. if you don't like the fact that i mention 'certain segments of MSNBC" then i could simply state:

The Ed Schultz show
Countdown with Keith Olbermann
The Rachel Maddow Show

and to a lesser extent (IMO) Hardball with Chris Matthews and "The Last Word" with Lawrence O'Donnell.

Again if you read my post I admitted that they carried no weight to the right wing media but they still exist which is and was my point.

Posted by: visionbrkr | October 4, 2010 3:22 PM | Report abuse

You and I both know what people mean when they say "liberal media"; it's a euphemism. It's a loaded term. How do you expect someone to interpret that? Literally? Are you serious?

Posted by: dkinmd | October 4, 2010 3:34 PM | Report abuse

@dkinmd,

I gave you a list, so uh, YES. My only omission is that I guess I could have listed those outlets from the onset. Either way this has wasted way too much of our time.

Posted by: visionbrkr | October 4, 2010 3:36 PM | Report abuse

Yes, you're right in the very narrowest of terms. I agree, this was a waste of my time.

Posted by: dkinmd | October 4, 2010 3:49 PM | Report abuse

If memory serves, Lithwick (whom I love, by the way) wrote an admiring profile of Roberts during his confirmation hearings (for Slate?). She was certainly dazzled by his legal mind. She needs to come clean that she supported his confirmation.

Posted by: scarlota | October 4, 2010 3:53 PM | Report abuse

First, don't confuse centrist with liberal, even though every right-winger calls every centrist a liberal.

Most cable viewers get their news from Fox news or CNN.

Fox DONATES money to the GOP, so don't tell me they aren't biased.

CNN is 100% corporate centrist. They take in large revenues from defense contractors, oil companies, and other big business.

Most people get news from non-cable news such as ABC, CBS, NBC. Again, centrist. Again, revenue dominated by defense, oil, auto, and other big business.

Big business and billionaires OWN all the media outlets, including any of the so-called liberal outlets.

See Krugman's article today about how the issues are dominated by billionaires and their media centers. I've quoted one paragraph below....

Americans believe that Saddam was involved with 911, not because of a liberal media, but because of a corporate media.

Americans believe torture is an effective intel gathering technique, not because of a liberal media, but because of a corporate media.

Americans believe that fannie and freddie caused the subprime crash, not because of a liberal media, but because of a corporate media.

Americans believe the Republicans want to save medicare and that the Dems want to create death panels, not because of a liberal media, but because of a corporate media.

Americans don't realize the last three GOP presidents created over 80% of all the debt, not because of a liberal media, but because of a corporate media.

Most Americans don't know the Great Depression was ended by keynesian policies, not because of a liberal media, but because of a corporate media.

Most Republicans believe Obama is a Muslim Kenyan not because of a liberal media, but because of a corporate media.

Most Americans don't associate tax cuts with growing debt, not because of a liberal media, but because of a corporate media.

Most Americans don't know that almost every climate skeptic on TV is both funded by big business and lacks credible science educations and have louder and more frequent voices on news shows than actual climate scientists, not because of a liberal media, but because of a corporate media.

Several PEW studies have shown that Bush benefitted from positive news stories whereas Gore and Kerry were dominated by negative stories.

http://www.nytimes.com/2010/10/04/opinion/04krugman.html?_r=1&hp

"Modern American conservatism is, in large part, a movement shaped by billionaires and their bank accounts, and assured paychecks for the ideologically loyal are an important part of the system. Scientists willing to deny the existence of man-made climate change, economists willing to declare that tax cuts for the rich are essential to growth, strategic thinkers willing to provide rationales for wars of choice, lawyers willing to provide defenses of torture, all can count on support from a network of organizations that may seem independent on the surface but are largely financed by a handful of ultrawealthy families."

Posted by: Lomillialor | October 4, 2010 3:54 PM | Report abuse

P.S. Lomillialor and lauren2010 are the same person. I don't know why this blog keeps changing its mind what my handle shows as.

A few months ago I tried commenting as lomillialor, but the site insisted I reregister, which I did. And now the site is confused.

Posted by: Lomillialor | October 4, 2010 3:56 PM | Report abuse

@lauren2010,

"Most Republicans believe Obama is a Muslim Kenyan not because of a liberal media, but because of a corporate media."

Really because I don't hear Matt Lauer saying this or Robin Roberts or any other "corporate media type" as you put it.

Is it subliminal then???

Look at that. All new conspiracy theories for you!

Posted by: visionbrkr | October 4, 2010 3:58 PM | Report abuse

Sounds good.

There is no reason not to roll back the incredible extreme Warren and Burger Court excesses.

In any care, this poll suggests that the number of Americans who support the Miranda rule for terrorists is only 56%.

http://i2.cdn.turner.com/cnn/2010/images/02/19/rel4e.pdf

Posted by: krazen1211 | October 4, 2010 4:55 PM | Report abuse

Oh, please. Ms. Lithwick, hyperventilating as always, spins this horrible conspiracy tale in which, as she notes, "basically the entire court — all nine justices, conservatives and liberals alike — disagree with Shatzer's claim." You should get your court analysis from someone normal.

Posted by: ostap666 | October 4, 2010 4:59 PM | Report abuse

the example used makes no sense for the 'whittling away' argument.

1. read miranda rights
2. question suspect, no dice he wants a laywer
3. new evidence (3 yrs later)
4. read miranda rights
5. suspect does *not* say he wants a lawyer
6. suspect incriminates himself.

how is this a problem? He was re-advised of his rights and did not take the "I want a lawyer" defense. If he had a lawyer appointed the first time, then they should have consulted with that lawyer to be sure, but if not, is it really unreasonable to ask him again (after 3 years pass) if he wants a lawyer? if he gives a different answer then you go with *that* new answer.

Posted by: rpixley220 | October 4, 2010 5:12 PM | Report abuse

Lom/Lauren, wow, I had no idea you were one person using two handles. Thanks for clearing that up.

visionbrkr, I think you've got a fair point that's getting lost in semantics. I agree that I'm surprised that the Roberts court has not received more attention from liberals in the last couple of years. I do think, however, that you could have been more clear than using the phrase "liberal media". That phrase does seem bound to be latched onto.

Posted by: MosBen | October 4, 2010 5:12 PM | Report abuse

"visionbrkr, I think you've got a fair point that's getting lost in semantics. I agree that I'm surprised that the Roberts court has not received more attention from liberals in the last couple of years. I do think, however, that you could have been more clear than using the phrase "liberal media". That phrase does seem bound to be latched onto."

They have. Or did you not notice that the Sotomayor/Kagan hearings were more about Roberts than those 2?


The bigger issue is that non-economic issues have generally taken a back seat, and the Supreme Court is a general non-economic body.

Posted by: krazen1211 | October 4, 2010 5:20 PM | Report abuse

Vision is the one trumpeting "liberal media" yet he is now diverting by saying I am a conspiracy theorist after he cherry-picks ONE bullet from my list. BTW, each of those bullets is correct, including the one he quoted. And yes, I've seen polls about people believing Obama is a Muslim or doesn't have s birth certificate on mainstream tv shows.

Posted by: lauren2010 | October 4, 2010 5:51 PM | Report abuse

Unless a previous court had already expanded Miranda to say that a defendant's request for a lawyer lasts for eternity, or at least for longer than 3 years, this is NOT a whittling away of Miranda. It's a refusal to expand it.

Posted by: bgmma50 | October 4, 2010 6:13 PM | Report abuse

To Quote Barry Ritholtz of The Big Picture:
"The right-left paradigm is dead. Now the conflict is between Corporate Authority and the Individual."
Roberts is hands down on the side of Corporate. Laws are for little people and Roberts exists to ensure that our pesky constitution doesn't interfere with our immortal, immoral corporate masters.

Posted by: karenfink | October 4, 2010 7:29 PM | Report abuse

lauren2010/Lomillalor,


i'm not trumpeting or diverting. Those are your words. I simply (as MosBen understood) stated my opinion that I was surprised that liberal media types (that I later referenced examples) made little attempts outside of Citizens United to try to make the points that were made in this article. You were the one that incorrectly assumed (or tried to read my mind and failed miserably) that I was making accusations about liberal media types. While I'll admit that I've seen Matt lauer for example talk about the polls I don't believe he's ever tried to argue that Obama is actually a Muslim or any similar argument. In fact recently I'd think he's arguing the other way that its wrong for people to think that and asking Dems why they let this rhetoric go on. Again as I said before way too much time was wasted on this subject and not enough with the subject of Miranda.


Posted by: visionbrkr | October 4, 2010 7:38 PM | Report abuse

vision

I stand by my words. Especially the ones I uttered when I said anyone who thinks the media is a liberal media instead of a corporate media is an idiot.

You haven't even begun to refute all my points.

I don't know why I waste time trying to deal with your childish views of how things work.

Posted by: Lomillialor | October 5, 2010 7:33 AM | Report abuse

"There is no liberal media.

Anyone who thinks that is an idiot."

Riiiiiight. And Klein of WaPo, and Krugman of the Times, weren't colluding to push Democrat healthcare mandates and economic policies.

Say, how's that working out for ya's? Will you be able to use your media mouthpieces to convince the public before the NOvember elections?

Ever wonder what contributions you might have made had you chosen to remain neutral as a journalist, and honestly analyzed these plans instead of picking and plugging Dem favorites?

Btw? As a crime-hating citizen, I say if the guy is read his Miranda rights again 3 years later and chooses to talk... there's a reason the 9 conservative and liberal justices found that an easy unanimous one.

You really ought to go to law school before you start playing expert on the legal, as well as the economic, issues. Krugman too. That individual mandate you're banking on to pay for all the Dem healthcare promises? What if it turns out to be unconstitutional? You and Krugmand gonna take back all the promises then, or pony up out of your individual largesse to make up for what you thought was coming from other people's pocketbooks?

Sure hope so. Otherwise, you may have done more harm than good in colluding to push what you thought would help people. Damn arrogance.

Posted by: Mary42 | October 5, 2010 7:51 PM | Report abuse

I think being part of the liberal media -- that was a requirement of JournOlist, right?

(How quickly they think we forget...)

Posted by: Mary42 | October 5, 2010 7:54 PM | Report abuse

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