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____ (2000) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 99–5525
_________________

CHARLES THOMAS DICKERSON, PETITIONER v.

UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 26, 2000]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

dissenting.
Those to whom judicial decisions are an unconnected
series of judgments that produce either favored or disfa-
vored results will doubtless greet today’s decision as a
paragon of moderation, since it declines to overrule
Miranda v. Arizona, 384 U. S. 436 (1966). Those who un-
derstand the judicial process will appreciate that today’s
decision is not a reaffirmation of Miranda, but a radical
revision of the most significant element of Miranda (as of
all cases): the rationale that gives it a permanent place in
our jurisprudence.
Marbury v. Madison, 1 Cranch 137 (1803), held that an
Act of Congress will not be enforced by the courts if what
it prescribes violates the Constitution of the United
States. That was the basis on which Miranda was de-
cided. One will search today’s opinion in vain, however,
for a statement (surely simple enough to make) that what
18 U. S. C. §3501 prescribes— the use at trial of a volun-
tary confession, even when a Miranda warning or its
equivalent has failed to be given— violates the Constitu-
tion. The reason the statement does not appear is not only
(and perhaps not so much) that it would be absurd, inas-
much as §3501 excludes from trial precisely what the
Constitution excludes from trial, viz., compelled confes-
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SCALIA, J., dissenting

sions; but also that Justices whose votes are needed to

compose today’s majority are on record as believing that a
violation of Miranda is not a violation of the Constitution.
See Davis v. United States, 512 U. S. 452, 457–458 (1994)
(opinion of the Court, in which KENNEDY, J., joined); Duck-
worth v. Eagan, 492 U. S. 195, 203 (1989) (opinion of the
Court, in which KENNEDY, J., joined); Oregon v. Elstad, 470
U. S. 298 (1985) (opinion of the Court by O’CONNOR, J.);
New York v. Quarles, 467 U. S. 649 (1984) (opinion of the
Court by REHNQUIST, J.). And so, to justify today’s agreed-
upon result, the Court must adopt a significant new, if not
entirely comprehensible, principle of constitutional law.
As the Court chooses to describe that principle, statutes of
Congress can be disregarded, not only when what they
prescribe violates the Constitution, but when what they
prescribe contradicts a decision of this Court that “an-
nounced a constitutional rule,” ante, at 7. As I shall dis-
cuss in some detail, the only thing that can possibly mean
in the context of this case is that this Court has the power,
not merely to apply the Constitution but to expand it,
imposing what it regards as useful “prophylactic” restric-
tions upon Congress and the States. That is an immense
and frightening antidemocratic power, and it does not
exist.
It takes only a small step to bring today’s opinion out of
the realm of power-judging and into the mainstream of
legal reasoning: The Court need only go beyond its care-
fully couched iterations that “Miranda is a constitutional
decision,” ante, at 8, that “Miranda is constitutionally
based,” ante, at 10, that Miranda has “constitutional
underpinnings,” ante, at 10, n. 5, and come out and say
quite clearly: “We reaffirm today that custodial interroga-
tion that is not preceded by Miranda warnings or their
equivalent violates the Constitution of the United States.”
It cannot say that, because a majority of the Court does
not believe it. The Court therefore acts in plain violation
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SCALIA, J., dissenting

of the Constitution when it denies effect to this Act of

Congress.
I
Early in this Nation’s history, this Court established the
sound proposition that constitutional government in a
system of separated powers requires judges to regard as
inoperative any legislative act, even of Congress itself,
that is “repugnant to the Constitution.”
“So if a law be in opposition to the constitution; if both
the law and the constitution apply to a particular
case, so that the court must either decide that case
conformably to the law, disregarding the constitution;
or conformably to the constitution, disregarding the
law; the court must determine which of these con-
flicting rules governs the case.” Marbury, supra, at
178.
The power we recognized in Marbury will thus permit us,
indeed require us, to “disregar[d]” §3501, a duly enacted
statute governing the admissibility of evidence in the
federal courts, only if it “be in opposition to the constitu-
tion”— here, assertedly, the dictates of the Fifth Amend-
ment.
It was once possible to characterize the so-called
Miranda rule as resting (however implausibly) upon the
proposition that what the statute here before us permits—
the admission at trial of un-Mirandized confessions—
violates the Constitution. That is the fairest reading of
the Miranda case itself. The Court began by announcing
that the Fifth Amendment privilege against self-
incrimination applied in the context of extrajudicial custo-
dial interrogation, see 384 U. S., at 460–467— itself a
doubtful proposition as a matter both of history and
precedent, see id., at, at 510–511 (Harlan, J., dissenting)
(characterizing the Court’s conclusion that the Fifth
Amendment privilege, rather than the Due Process
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SCALIA, J., dissenting

Clause, governed stationhouse confessions as a “trompe

l’oeil”). Having extended the privilege into the confines of
the station house, the Court liberally sprinkled through-
out its sprawling 60-page opinion suggestions that, be-
cause of the compulsion inherent in custodial interroga-
tion, the privilege was violated by any statement thus
obtained that did not conform to the rules set forth in
Miranda, or some functional equivalent. See id., at 458
(“Unless adequate protective devices are employed to
dispel the compulsion inherent in custodial surroundings,
no statement obtained from the defendant can truly be the
product of his free choice”) (emphases added); id., at 461
(“An individual swept from familiar surroundings into
police custody, surrounded by antagonistic forces, and
subjected to the techniques of persuasion described above
cannot be otherwise than under compulsion to speak”); id.,
at 467 (“We have concluded that without proper safe-
guards the process of in-custody interrogation . . . contains
inherently compelling pressures which work to undermine
the individual’s will to resist and to compel him to speak
where he would not otherwise do so freely”); id., 457, n. 26
(noting the “absurdity of denying that a confession ob-
tained under these circumstances is compelled”).
The dissenters, for their part, also understood
Miranda’s holding to be based on the “premise . . . that
pressure on the suspect must be eliminated though it be
only the subtle influence of the atmosphere and sur-
roundings.” Id., at 512 (Harlan, J., dissenting). See also
id., at 535 (White, J., dissenting) (“[I]t has never been
suggested, until today, that such questioning was so coer-
cive and accused persons so lacking in hardihood that the
very first response to the very first question following the
commencement of custody must be conclusively presumed
to be the product of an overborne will”). And at least one
case decided shortly after Miranda explicitly confirmed
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SCALIA, J., dissenting

the view. See Orozco v. Texas, 394 U. S. 324, 326 (1969)

(“[T]he use of these admissions obtained in the absence of
the required warnings was a flat violation of the Self-
Incrimination Clause of the Fifth Amendment as con-
strued in Miranda”).
So understood, Miranda was objectionable for innumer-
able reasons, not least the fact that cases spanning more
than 70 years had rejected its core premise that, absent
the warnings and an effective waiver of the right to re-
main silent and of the (thitherto unknown) right to have
an attorney present, a statement obtained pursuant to
custodial interrogation was necessarily the product of
compulsion. See Crooker v. California, 357 U. S. 433
(1958) (confession not involuntary despite denial of access
to counsel); Cicenia v. Lagay, 357 U. S. 504 (1958) (same);
Powers v. United States, 223 U. S. 303 (1912) (lack of
warnings and counsel did not render statement before
United States Commisioner involuntary); Wilson v. United
States, 162 U. S. 613 (1896) (same). Moreover, history and
precedent aside, the decision in Miranda, if read as an
explication of what the Constitution requires, is preposter-
ous. There is, for example, simply no basis in reason for
concluding that a response to the very first question
asked, by a suspect who already knows all of the rights
described in the Miranda warning, is anything other than
a volitional act. See Miranda, supra, at 533–534 (White,
J., dissenting). And even if one assumes that the elimina-
tion of compulsion absolutely requires informing even the
most knowledgeable suspect of his right to remain silent,
it cannot conceivably require the right to have counsel
present. There is a world of difference, which the Court
recognized under the traditional voluntariness test but
ignored in Miranda, between compelling a suspect to
incriminate himself and preventing him from foolishly
doing so of his own accord. Only the latter (which is not
required by the Constitution) could explain the Court’s
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SCALIA, J., dissenting

inclusion of a right to counsel and the requirement that it,

too, be knowingly and intelligently waived. Counsel’s
presence is not required to tell the suspect that he need
not speak; the interrogators can do that. The only good
reason for having counsel there is that he can be counted
on to advise the suspect that he should not speak. See
Watts v. Indiana, 338 U. S. 49, 59 (1949) (Jackson, J.,
concurring in result in part and dissenting in part) (“[A]ny
lawyer worth his salt will tell the suspect in no uncer-
tain terms to make no statement to police under any
circumstances”).
Preventing foolish (rather than compelled) confessions is
likewise the only conceivable basis for the rules (suggested
in Miranda, see 384 U. S., at 444–445, 473–474), that
courts must exclude any confession elicited by questioning
conducted, without interruption, after the suspect has
indicated a desire to stand on his right to remain silent,
see Michigan v. Mosley, 423 U. S. 96, 105–106 (1975), or
initiated by police after the suspect has expressed a desire
to have counsel present, see Edwards v. Arizona, 451 U. S.
477, 484–485 (1981). Nonthreatening attempts to per-
suade the suspect to reconsider that initial decision are
not, without more, enough to render a change of heart the
product of anything other than the suspect’s free will.
Thus, what is most remarkable about the Miranda deci-
sion— and what made it unacceptable as a matter of
straightforward constitutional interpretation in the Mar-
bury tradition— is its palpable hostility toward the act of
confession per se, rather than toward what the Constitu-
tion abhors, compelled confession. See United States v.
Washington, 431 U. S. 181, 187 (1977) (“[F]ar from being
prohibited by the Constitution, admissions of guilt by
wrongdoers, if not coerced, are inherently desirable”). The
Constitution is not, unlike the Miranda majority, offended
by a criminal’s commendable qualm of conscience or fortu-
nate fit of stupidity. Cf. Minnick v. Mississippi, 498 U. S.
 Cite as: 530 U. S. ____ (2000) 7

SCALIA, J., dissenting

146, 166–167 (1990) (SCALIA, J., dissenting).

For these reasons, and others more than adequately
developed in the Miranda dissents and in the subsequent
works of the decision’s many critics, any conclusion
that a violation of the Miranda rules necessarily amounts
to a violation of the privilege against compelled self-
incrimination can claim no support in history, precedent,
or common sense, and as a result would at least presump-
tively be worth reconsidering even at this late date. But
that is unnecessary, since the Court has (thankfully) long
since abandoned the notion that failure to comply with
Miranda’s rules is itself a violation of the Constitution.
II
As the Court today acknowledges, since Miranda we
have explicitly, and repeatedly, interpreted that decision
as having announced, not the circumstances in which
custodial interrogation runs afoul of the Fifth or Four-
teenth Amendment, but rather only “prophylactic” rules
that go beyond the right against compelled self-
incrimination. Of course the seeds of this “prophylactic”
interpretation of Miranda were present in the decision
itself. See Miranda, supra, at 439 (discussing the “neces-
sity for procedures which assure that the [suspect] is
accorded his privilege”); id., at 447 (“[u]nless a proper
limitation upon custodial interrogation is achieved— such
as these decisions will advance— there can be no assur-
ance that practices of this nature will be eradicated”); id.,
at 457 (“[i]n these cases, we might not find the defendants’
statements to have been involuntary in traditional
terms”); ibid. (noting “concern for adequate safeguards to
protect precious Fifth Amendment rights” and the “poten-
tiality for compulsion” in Ernesto Miranda’s interroga-
tion). In subsequent cases, the seeds have sprouted and
borne fruit: The Court has squarely concluded that it is
possible— indeed not uncommon— for the police to violate
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SCALIA, J., dissenting

Miranda without also violating the Constitution.

Michigan v. Tucker, 417 U. S. 433 (1974), an opinion for
the Court written by then-JUSTICE REHNQUIST, rejected
the true-to-Marbury, failure-to-warn-as-constitutional-
violation interpretation of Miranda. It held that exclusion
of the “fruits” of a Miranda violation— the statement of a
witness whose identity the defendant had revealed while
in custody— was not required. The opinion explained that
the question whether the “police conduct complained of
directly infringed upon respondent’s right against compul-
sory self-incrimination” was a “separate question” from
“whether it instead violated only the prophylactic rules
developed to protect that right.” Id., at 439. The “proce-
dural safeguards” adopted in Miranda, the Court said,
“were not themselves rights protected by the Constitution
but were instead measures to insure that the right against
compulsory self-incrimination was protected,” and to
“provide practical reinforcement for the right,” id., at 444.
Comparing the particular facts of the custodial interroga-
tion with the “historical circumstances underlying the
privilege,” ibid., the Court concluded, unequivocally, that
the defendant’s statement could not be termed “involun-
tary as that term has been defined in the decisions of this
Court,” id., at 445, and thus that there had been no consti-
tutional violation, notwithstanding the clear violation of
the “procedural rules later established in Miranda,” ibid.
Lest there be any confusion on the point, the Court reiter-
ated that the “police conduct at issue here did not abridge
respondent’s constitutional privilege against compulsory
self-incrimination, but departed only from the prophylactic
standards later laid down by this Court in Miranda to
safeguard that privilege.” Id., at 446. It is clear from our
cases, of course, that if the statement in Tucker had been
obtained in violation of the Fifth Amendment, the state-
ment and its fruits would have been excluded. See Nix v.
Williams, 467 U. S. 431, 442 (1984).
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SCALIA, J., dissenting

The next year, in Oregon v. Hass, 420 U. S. 714 (1975),

the Court held that a defendant’s statement taken in
violation of Miranda that was nonetheless voluntary could
be used at trial for impeachment purposes. This holding
turned upon the recognition that violation of Miranda is
not unconstitutional compulsion, since statements ob-
tained in actual violation of the privilege against com-
pelled self-incrimination, “as opposed to . . . taken in viola-
tion of Miranda,” quite simply “may not be put to any
testimonial use whatever against [the defendant] in a
criminal trial,” including as impeachment evidence. New
Jersey v. Portash, 440 U. S. 450, 459 (1979). See also
Mincey v. Arizona, 437 U. S. 385, 397–398 (1978) (holding
that while statements obtained in violation of Miranda
may be used for impeachment if otherwise trustworthy,
the Constitution prohibits “any criminal trial use against
a defendant of his involuntary statement”).
Nearly a decade later, in New York v. Quarles, 467 U. S.
649 (1984), the Court relied upon the fact that “[t]he pro-
phylactic Miranda warnings . . . are ‘not themselves rights
protected by the Constitution,’” id., at 654 (quoting
Tucker, supra, at 444), to create a “public safety” excep-
tion. In that case, police apprehended, after a chase in a
grocery store, a rape suspect known to be carrying a gun.
After handcuffing and searching him (and finding no
gun)— but before reading him his Miranda warnings— the
police demanded to know where the gun was. The defen-
dant nodded in the direction of some empty cartons and
responded that “the gun is over there.” The Court held
that both the unwarned statement— “the gun is over
there”— and the recovered weapon were admissible in the
prosecution’s case in chief under a “public safety excep-
tion” to the “prophylactic rules enunciated in Miranda.”
467 U. S., at 653. It explicitly acknowledged that if the
Miranda warnings were an imperative of the Fifth
Amendment itself, such an exigency exception would be
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SCALIA, J., dissenting

impossible, since the Fifth Amendment’s bar on compelled

self-incrimination is absolute, and its “‘strictures, unlike
the Fourth’s are not removed by showing reasonableness,’”
467 U. S., at 653, n. 3. (For the latter reason, the Court
found it necessary to note that respondent did not “claim
that [his] statements were actually compelled by police
conduct which overcame his will to resist,” id., at 654.)
The next year, the Court again declined to apply the
“fruit of the poisonous tree” doctrine to a Miranda viola-
tion, this time allowing the admission of a suspect’s prop-
erly warned statement even though it had been preceded
(and, arguably, induced) by an earlier inculpatory state-
ment taken in violation of Miranda. Oregon v. Elstad, 470
U. S. 298 (1985). As in Tucker, the Court distinguished
the case from those holding that a confession obtained as a
result of an unconstitutional search is inadmissible, on the
ground that the violation of Miranda does not involve an
“actual infringement of the suspect’s constitutional
rights,” 470 U. S., at 308. Miranda, the Court explained,
“sweeps more broadly than the Fifth Amendment itself,”
and “Miranda’s preventive medicine provides a remedy
even to the defendant who has suffered no identifiable
constitutional harm.” 470 U. S., at 307. “[E]rrors [that]
are made by law enforcement officers in administering the
prophylactic Miranda procedures . . . should not breed the
same irremediable consequences as police infringement of
the Fifth Amendment itself.” Id., at 308–309.
In light of these cases, and our statements to the same
effect in others, see, e.g., Davis v. United States, 512 U. S.,
at 457–458; Withrow v. Williams, 507 U. S. 680, 690–691
(1993); Eagan, 492 U. S., at 203, it is simply no longer
possible for the Court to conclude, even if it wanted to,
that a violation of Miranda’s rules is a violation of the
Constitution. But as I explained at the outset, that is
what is required before the Court may disregard a law of
Congress governing the admissibility of evidence in fed-
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SCALIA, J., dissenting

eral court. The Court today insists that the decision in

Miranda is a “constitutional” one, ante, at 1, 8; that it has
“constitutional underpinnings”, ante, at 10, n. 5; a “consti-
tutional basis” and a “constitutional origin”, ante, at 9,
n. 3; that it was “constitutionally based”, ante, at 10; and
that it announced a “constitutional rule,” ante, at 7, 9, 11,
14. It is fine to play these word games; but what makes a
decision “constitutional” in the only sense relevant here—
in the sense that renders it impervious to supersession by
congressional legislation such as §3501— is the determina-
tion that the Constitution requires the result that the
decision announces and the statute ignores. By disre-
garding congressional action that concededly does not
violate the Constitution, the Court flagrantly offends
fundamental principles of separation of powers, and arro-
gates to itself prerogatives reserved to the representatives
of the people.
The Court seeks to avoid this conclusion in two ways:
First, by misdescribing these post-Miranda cases as mere
dicta. The Court concedes only “that there is language in
some of our opinions that supports the view” that
Miranda’s protections are not “constitutionally required.”
Ante, at 8. It is not a matter of language; it is a matter of
holdings. The proposition that failure to comply with
Miranda’s rules does not establish a constitutional viola-
tion was central to the holdings of Tucker, Hass, Quarles,
and Elstad.
The second way the Court seeks to avoid the impact of
these cases is simply to disclaim responsibility for rea-
soned decisionmaking. It says:
“These decisions illustrate the principle— not that
Miranda is not a constitutional rule— but that no con-
stitutional rule is immutable. No court laying down a
general rule can possibly foresee the various circum-
stances in which counsel will seek to apply it, and the
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SCALIA, J., dissenting

sort of modifications represented by these cases are as

much a normal part of constitutional law as the origi-
nal decision.” Ante, at 11.
The issue, however, is not whether court rules are “muta-
ble”; they assuredly are. It is not whether, in the light of
“various circumstances,” they can be “modifi[ed]”; they
assuredly can. The issue is whether, as mutated and
modified, they must make sense. The requirement that
they do so is the only thing that prevents this Court from
being some sort of nine-headed Caesar, giving thumbs-up
or thumbs-down to whatever outcome, case by case, suits
or offends its collective fancy. And if confessions procured
in violation of Miranda are confessions “compelled” in
violation of the Constitution, the post-Miranda decisions I
have discussed do not make sense. The only reasoned
basis for their outcome was that a violation of Miranda is
not a violation of the Constitution. If, for example, as the
Court acknowledges was the holding of Elstad, “the tradi-
tional ‘fruits’ doctrine developed in Fourth Amendment
cases” (that the fruits of evidence obtained unconstitution-
ally must be excluded from trial) does not apply to the
fruits of Miranda violations, ante, at 11; and if the reason
for the difference is not that Miranda violations are not
constitutional violations (which is plainly and flatly what
Elstad said); then the Court must come up with some
other explanation for the difference. (That will take quite
a bit of doing, by the way, since it is not clear on the face of
the Fourth Amendment that evidence obtained in viola-
tion of that guarantee must be excluded from trial,
whereas it is clear on the face of the Fifth Amendment
that unconstitutionally compelled confessions cannot be
used.) To say simply that “unreasonable searches under
the Fourth Amendment are different from unwarned
interrogation under the Fifth Amendment,” ante, at 11–12,
is true but supremely unhelpful.
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SCALIA, J., dissenting

Finally, the Court asserts that Miranda must be a

“constitutional decision” announcing a “constitutional
rule,” and thus immune to congressional modification,
because we have since its inception applied it to the
States. If this argument is meant as an invocation of stare
decisis, it fails because, though it is true that our cases
applying Miranda against the States must be reconsidered
if Miranda is not required by the Constitution, it is like-
wise true that our cases (discussed above) based on the
principle that Miranda is not required by the Constitution
will have to be reconsidered if it is. So the stare decisis
argument is a wash. If, on the other hand, the argument
is meant as an appeal to logic rather than stare decisis, it
is a classic example of begging the question: Congress’s
attempt to set aside Miranda, since it represents an asser-
tion that violation of Miranda is not a violation of the
Constitution, also represents an assertion that the Court
has no power to impose Miranda on the States. To answer
this assertion— not by showing why violation of Miranda
is a violation of the Constitution— but by asserting that
Miranda does apply against the States, is to assume pre-
cisely the point at issue. In my view, our continued appli-
cation of the Miranda code to the States despite our con-
sistent statements that running afoul of its dictates does
not necessarily— or even usually— result in an actual
constitutional violation, represents not the source of
Miranda’s salvation but rather evidence of its ultimate
illegitimacy. See generally J. Grano, Confessions, Truth,
and the Law 173–198 (1993); Grano, Prophylactic Rules in
Criminal Procedure: A Question of Article III Legitimacy,
80 Nw. U. L. Rev. 100 (1985). As JUSTICE STEVENS has
elsewhere explained, “[t]his Court’s power to require state
courts to exclude probative self-incriminatory statements
rests entirely on the premise that the use of such evidence
violates the Federal Constitution. . . . If the Court does not
accept that premise, it must regard the holding in the
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SCALIA, J., dissenting

Miranda case itself, as well as all of the federal jurispru-

dence that has evolved from that decision, as nothing
more than an illegitimate exercise of raw judicial power.”
Elstad, 470 U. S., at 370 (dissenting opinion). Quite so.
III
There was available to the Court a means of reconciling
the established proposition that a violation of Miranda
does not itself offend the Fifth Amendment with the
Court’s assertion of a right to ignore the present statute.
That means of reconciliation was argued strenuously by
both petitioner and the United States, who were evidently
more concerned than the Court is with maintaining the
coherence of our jurisprudence. It is not mentioned in the
Court’s opinion because, I assume, a majority of the Jus-
tices intent on reversing believes that incoherence is the
lesser evil. They may be right.
Petitioner and the United States contend that there is
nothing at all exceptional, much less unconstitutional,
about the Court’s adopting prophylactic rules to buttress
constitutional rights, and enforcing them against Congress
and the States. Indeed, the United States argues that
“[p]rophylactic rules are now and have been for many
years a feature of this Court’s constitutional adjudication.”
Brief for United States 47. That statement is not wholly
inaccurate, if by “many years” one means since the mid-
1960’s. However, in their zeal to validate what is in my
view a lawless practice, the United States and petitioner
greatly overstate the frequency with which we have en-
gaged in it. For instance, petitioner cites several cases in
which the Court quite simply exercised its traditional
judicial power to define the scope of constitutional protec-
tions and, relatedly, the circumstances in which they are
violated. See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U. S. 419, 436–437 (1982) (holding that a per-
manent physical occupation constitutes a per se taking);
 Cite as: 530 U. S. ____ (2000) 15

SCALIA, J., dissenting

Maine v. Moulton, 474 U. S. 159, 176 (1985) (holding that

the Sixth Amendment right to the assistance of counsel is
actually “violated when the State obtains incriminating
statements by knowingly circumventing the accused’s
right to have counsel present in a confrontation between
the accused and a state agent”).
Similarly unsupportive of the supposed practice is Bru-
ton v. United States, 391 U. S. 123 (1968), where we con-
cluded that the Confrontation Clause of the Sixth
Amendment forbids the admission of a nontestifying co-
defendant’s facially incriminating confession in a joint
trial, even where the jury has been given a limiting in-
struction. That decision was based, not upon the theory
that this was desirable protection “beyond” what the
Confrontation Clause technically required; but rather
upon the self-evident proposition that the inability to
cross-examine an available witness whose damaging out-
of-court testimony is introduced violates the Confrontation
Clause, combined with the conclusion that in these cir-
cumstances a mere jury instruction can never be relied
upon to prevent the testimony from being damaging, see
Richardson v. Marsh, 481 U. S. 200, 207–208 (1987).
The United States also relies on our cases involving the
question whether a State’s procedure for appointed coun-
sel’s withdrawal of representation on appeal satisfies the
State’s constitutional obligation to “‘affor[d] adequate and
effective appellate review to indigent defendants.’” Smith
v. Robbins, 528 U. S. ___, ___ (2000) (slip op., at 14)
(quoting Griffin v. Illinois, 351 U. S. 12, 20 (1956). In
Anders v. California, 386 U. S. 738 (1967), we concluded
that California’s procedure governing withdrawal fell
short of the constitutional minimum, and we outlined a
procedure that would meet that standard. But as we
made clear earlier this Term in Smith, which upheld a
procedure different from the one Anders suggested, the
benchmark of constitutionality is the constitutional re-
16 DICKERSON v. UNITED STATES

SCALIA, J., dissenting

quirement of adequate representation, and not some

excrescence upon that requirement decreed, for safety’s
sake, by this Court.
In a footnote, the United States directs our attention to
certain overprotective First Amendment rules that we
have adopted to ensure “breathing space” for expression.
See Gertz v. Robert Welch, Inc., 418 U. S. 323, 340, 342
(1974) (recognizing that in New York Times Co. v. Sulli-
van, 376 U. S. 254 (1964), we “extended a measure of
strategic protection to defamatory falsehood” of public
officials); Freedman v. Maryland, 380 U. S. 51, 58 (1965)
(setting forth “procedural safeguards designed to obviate
the dangers of a censorship system” with respect to motion
picture obscenity). In these cases, and others involving
the First Amendment, the Court has acknowledged that in
order to guarantee that protected speech is not “chilled”
and thus forgone, it is in some instances necessary to
incorporate in our substantive rules a “measure of strate-
gic protection.” But that is because the Court has viewed
the importation of “chill” as itself a violation of the First
Amendment— not because the Court thought it could go
beyond what the First Amendment demanded in order to
provide some prophylaxis.
Petitioner and the United States are right on target,
however, in characterizing the Court’s actions in a case
decided within a few years of Miranda, North Carolina v.
Pearce, 395 U. S. 711 (1969). There, the Court concluded
that due process would be offended were a judge vindic-
tively to resentence with added severity a defendant who
had successfully appealed his original conviction. Rather
than simply announce that vindictive sentencing violates
the Due Process Clause, the Court went on to hold that
“[i]n order to assure the absence of such a [vindictive]
motivation, . . . the reasons for [imposing the increased
sentence] must affirmatively appear” and must “be based
upon objective information concerning identifiable conduct
 Cite as: 530 U. S. ____ (2000) 17

SCALIA, J., dissenting

on the part of the defendant occurring after the time of the

original sentencing proceeding.” Id., at 726. The Court
later explicitly acknowledged Pearce’s prophylactic charac-
ter, see Michigan v. Payne, 412 U. S. 47, 53 (1973). It is
true, therefore, that the case exhibits the same fundamen-
tal flaw as does Miranda when deprived (as it has been) of
its original (implausible) pretension to announcement of
what the Constitution itself required. That is, although
the Due Process Clause may well prohibit punishment
based on judicial vindictiveness, the Constitution by no
means vests in the courts “any general power to prescribe
particular devices ‘in order to assure the absence of such a
motivation,’” 395 U. S., at 741 (Black, J., dissenting).
Justice Black surely had the right idea when he derided
the Court’s requirement as “pure legislation if there ever
was legislation,” ibid., although in truth Pearce’s rule
pales as a legislative achievement when compared to the
detailed code promulgated in Miranda.1
The foregoing demonstrates that, petitioner’s and the
United States’ suggestions to the contrary notwithstand-
ing, what the Court did in Miranda (assuming, as later
cases hold, that Miranda went beyond what the Constitu-
tion actually requires) is in fact extraordinary. That the
Court has, on rare and recent occasion, repeated the mis-
take does not transform error into truth, but illustrates
the potential for future mischief that the error entails.
Where the Constitution has wished to lodge in one of the

——————
1 As for Michigan v. Jackson, 475 U. S. 625 (1986), upon which peti-

tioner and the United States also rely, in that case we extended to the
Sixth Amendment, postindictment, context the Miranda-based pro-
phylactic rule of Edwards v. Arizona, 451 U. S. 477 (1981), that the
police cannot initiate interrogation after counsel has been requested. I
think it less a separate instance of claimed judicial power to impose
constitutional prophylaxis than a direct, logic-driven consequence of
Miranda itself.
18 DICKERSON v. UNITED STATES

SCALIA, J., dissenting

branches of the Federal Government some limited power

to supplement its guarantees, it has said so. See Amdt.
14, §5 (“The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article”).
The power with which the Court would endow itself under
a “prophylactic” justification for Miranda goes far beyond
what it has permitted Congress to do under authority of
that text. Whereas we have insisted that congressional
action under §5 of the Fourteenth Amendment must be
“congruent” with, and “proportional” to, a constitutional
violation, see City of Boerne v. Flores, 521 U. S. 507, 520
(1997), the Miranda nontextual power to embellish confers
authority to prescribe preventive measures against not
only constitutionally prohibited compelled confessions, but
also (as discussed earlier) foolhardy ones.
I applaud, therefore, the refusal of the Justices in the
majority to enunciate this boundless doctrine of judicial
empowerment as a means of rendering today’s decision
rational. In nonetheless joining the Court’s judgment,
however, they overlook two truisms: that actions speak
louder than silence, and that (in judge-made law at least)
logic will out. Since there is in fact no other principle that
can reconcile today’s judgment with the post-Miranda
cases that the Court refuses to abandon, what today’s
decision will stand for, whether the Justices can bring
themselves to say it or not, is the power of the Supreme
Court to write a prophylactic, extraconstitutional Consti-
tution, binding on Congress and the States.
IV
Thus, while I agree with the Court that §3501 cannot be
upheld without also concluding that Miranda represents
an illegitimate exercise of our authority to review state-
court judgments, I do not share the Court’s hesitation in
reaching that conclusion. For while the Court is also
correct that the doctrine of stare decisis demands some
 Cite as: 530 U. S. ____ (2000) 19

SCALIA, J., dissenting

“special justification” for a departure from longstanding

precedent— even precedent of the constitutional variety—
that criterion is more than met here. To repeat JUSTICE
STEVENS’ cogent observation, it is “[o]bviou[s]” that “the
Court’s power to reverse Miranda’s conviction rested
entirely on the determination that a violation of the Fed-
eral Constitution had occurred.” Elstad, 470 U. S., at 367,
n. 9 (dissenting opinion) (emphasis added). Despite the
Court’s Orwellian assertion to the contrary, it is undeni-
able that later cases (discussed above) have “undermined
[Miranda’s] doctrinal underpinnings,” ante, at 14, denying
constitutional violation and thus stripping the holding of
its only constitutionally legitimate support. Miranda’s
critics and supporters alike have long made this point.
See Office of Legal Policy, U. S. Dept. of Justice, Report to
Attorney General on Law of Pre-Trial Interrogation 97
(Feb. 12, 1986) (“The current Court has repudiated the
premises on which Miranda was based, but has drawn
back from recognizing the full implications of its deci-
sions”); id., at 78 (“Michigan v. Tucker accordingly repudi-
ated the doctrinal basis of the Miranda decision”); Sonen-
shein, Miranda and the Burger Court: Trends and
Countertrends, 13 Loyola U. Chi. L. J. 405, 407–408
(1982) (“Although the Burger Court has not overruled
Miranda, the Court has consistently undermined the
rationales, assumptions, and values which gave Miranda
life”); id., at 425–426 (“Seemingly, the Court [in Michigan
v. Tucker] utterly destroyed both Miranda’s rationale and
its holding”); Stone, The Miranda Doctrine in the Burger
Court, 1977 S. Ct. Rev. 99, 118 (“Mr. Justice Rehnquist’s
conclusion that there is a violation of the Self-
Incrimination Clause only if a confession is involuntary
. . . is an outright rejection of the core premises of
Miranda”).
The Court cites Patterson v. McLean Credit Union, 491
U. S. 164, 173 (1989), as accurately reflecting our standard
20 DICKERSON v. UNITED STATES

SCALIA, J., dissenting

for overruling, see ante, at 14— which I am pleased to

accept, even though Patterson was speaking of overruling
statutory cases and the standard for constitutional deci-
sions is somewhat more lenient. What is set forth there
reads as though it was written precisely with the current
status of Miranda in mind:
“In cases where statutory precedents have been over-
ruled, the primary reason for the Court’s shift in posi-
tion has been the intervening development of the law,
through either the growth of judicial doctrine or fur-
ther action taken by Congress. Where such changes
have removed or weakened the conceptual underpin-
nings from the prior decision, . . . or where the later
law has rendered the decision irreconcilable with
competing legal doctrines or policies, . . . the Court
has not hesitated to overrule an earlier decision.” 491
U. S., at 173.
Neither am I persuaded by the argument for retaining
Miranda that touts its supposed workability as compared
with the totality-of-the-circumstances test it purported to
replace. Miranda’s proponents cite ad nauseam the fact
that the Court was called upon to make difficult and sub-
tle distinctions in applying the “voluntariness” test in
some 30-odd due process “coerced confessions” cases in the
30 years between Brown v. Mississippi, 297 U. S. 278
(1936), and Miranda. It is not immediately apparent,
however, that the judicial burden has been eased by the
“bright-line” rules adopted in Miranda. In fact, in the 34
years since Miranda was decided, this Court has been
called upon to decide nearly 60 cases involving a host of
Miranda issues, most of them predicted with remarkable
prescience by Justice White in his Miranda dissent. 384
U. S., at 545.
Moreover, it is not clear why the Court thinks that the
“totality-of-the-circumstances test . . . is more difficult
 Cite as: 530 U. S. ____ (2000) 21

SCALIA, J., dissenting

than Miranda for law enforcement officers to conform to,

and for courts to apply in a consistent manner.” Ante,
at 14. Indeed, I find myself persuaded by JUSTICE
O’CONNOR’s rejection of this same argument in her opin-
ion in Williams, 507 U. S., at 711–712 (O’CONNOR, J.,
joined by REHNQUIST, C. J., concurring in part and dis-
senting in part):
“Miranda, for all its alleged brightness, is not with-
out its difficulties; and voluntariness is not without its
strengths. . . . Miranda creates as many close ques-
tions as it resolves. The task of determining whether
a defendant is in ‘custody’has proved to be ‘a slippery
one.’ And the supposedly ‘bright’lines that separate
interrogation from spontaneous declaration, the exer-
cise of a right from waiver, and the adequate warning
from the inadequate, likewise have turned out to be
rather dim and ill defined. The totality-of-the-
circumstances approach, on the other hand, permits
each fact to be taken into account without resort to
formal and dispositive labels. By dispensing with the
difficulty of producing a yes-or-no answer to questions
that are often better answered in shades and degrees,
the voluntariness inquiry often can make judicial deci-
sionmaking easier rather than more onerous.” (Em-
phasis added; citations omitted.)
But even were I to agree that the old totality-of-the-
circumstances test was more cumbersome, it is simply not
true that Miranda has banished it from the law and re-
placed it with a new test. Under the current regime,
which the Court today retains in its entirety, courts are
frequently called upon to undertake both inquiries. That
is because, as explained earlier, voluntariness remains the
constitutional standard, and as such continues to govern
the admissibility for impeachment purposes of statements
taken in violation of Miranda, the admissibility of the
22 DICKERSON v. UNITED STATES

SCALIA, J., dissenting

“fruits” of such statements, and the admissibility of state-

ments challenged as unconstitutionally obtained despite
the interrogator’s compliance with Miranda, see, e.g.,
Colorado v. Connelly, 479 U. S. 157 (1986).
Finally, I am not convinced by petitioner’s argument
that Miranda should be preserved because the decision
occupies a special place in the “public’s consciousness.”
Brief for Petitioner 44. As far as I am aware, the public is
not under the illusion that we are infallible. I see little
harm in admitting that we made a mistake in taking away
from the people the ability to decide for themselves what
protections (beyond those required by the Constitution)
are reasonably affordable in the criminal investigatory
process. And I see much to be gained by reaffirming for
the people the wonderful reality that they govern them-
selves— which means that “[t]he powers not delegated to
the United States by the Constitution” that the people
adopted, “nor prohibited . . . to the States” by that Consti-
tution, “are reserved to the States respectively, or to the
people,” U. S. Const., Amdt. 10.2
* * *
Today’s judgment converts Miranda from a milestone of
judicial overreaching into the very Cheops’ Pyramid (or
perhaps the Sphinx would be a better analogue) of judicial

——————

2 The Court cites my dissenting opinion in Mitchell v. United States,

526 U. S. 314, 331–332 (1999), for the proposition that “the fact that a
rule has found ‘wide acceptance in the legal culture’is ‘adequate reason
not to overrule’it.” Ante, at 13. But the legal culture is not the same as
the “public’s consciousness”; and unlike the rule at issue in Mitchell
(prohibiting comment on a defendant’s refusal to testify) Miranda has
been continually criticized by lawyers, law enforcement officials, and
scholars since its pronouncement (not to mention by Congress, as §3501
shows). In Mitchell, moreover, the constitutional underpinnings of the
earlier rule had not been demolished by subsequent cases.
 Cite as: 530 U. S. ____ (2000) 23

SCALIA, J., dissenting

arrogance. In imposing its Court-made code upon the

States, the original opinion at least asserted that it was
demanded by the Constitution. Today’s decision does not
pretend that it is— and yet still asserts the right to impose
it against the will of the people’s representatives in Con-
gress. Far from believing that stare decisis compels this
result, I believe we cannot allow to remain on the books
even a celebrated decision— especially a celebrated deci-
sion— that has come to stand for the proposition that the
Supreme Court has power to impose extraconstitutional
constraints upon Congress and the States. This is not the
system that was established by the Framers, or that would
be established by any sane supporter of government by the
people.
I dissent from today’s decision, and, until §3501 is re-
pealed, will continue to apply it in all cases where there
has been a sustainable finding that the defendant’s con-
fession was voluntary.