Tuesday, March 13, 2007

Katz on Understanding Rehnquist in Dickerson v. U.S.

Daniel Martin Katz, Political Science, Michigan (Ph.D. student), has an article on SSRN that is forthcoming in the Journal of Law and Politics, Institutional Rules, Strategic Behavior and the Legacy of Chief Justice William Rehnquist: Setting the Record Straight on Dickerson v. United States. In Dickerson, the Court considered whether to overrule Miranda v. Arizona. Rehnquist's majority opinion reaffirmed Miranda. Here's the abstract:
Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive for him to behave sophisticatedly. Many prevailing explanations for Dickerson at a minimum are incomplete because they fail to determine whether his vote and opinion were the result of moderation, fidelity to traditional legal principles, or, in fact, strategic behavior. This article pursues a uniqueness claim, arguing the gravamen of available evidence supports a strategic explanation for Justice Rehnquist's behavior in Dickerson. To do this, the article first reviews the methodological debate which exists within the social science scholarship, a debate relevant to the competing explanations for the Dickerson decision. Next, the article explores the strategic or quasi-game theoretic approach by describing the multistage sophisticated process which produces all Supreme Court decisions. It culminates in Figure 1.1, a general diagram that is carried forward into Part II of the article. Part II directly considers the Dickerson decision. This section begins with a description of the Supreme Court's Miranda jurisprudence before reviewing the specific facts and procedural history of the case. Next, Part II reviews Justice Rehnquist's Miranda-related decisions which, taken together, demonstrate the truly anomalous nature of the Dickerson opinion. The article then outlines its strategic account, an approach rejecting many prevailing explanations of Rehnquist's behavior. Strategic and non-strategic behaviors are often observationally equivalent. Thus, in order firmly to support its strategic theory, this article concludes with a discussion of several important post-Dickerson decisions including Chavez v. Martinez, Missouri v. Seibert, and United States v. Patane, where the Chief Justice surprisingly supports the preservation of certain exceptions to Miranda even after his Dickerson opinion supposedly afforded Miranda full constitutional status. The cases are critical to the analysis because they help determine what end Chief Justice Rehnquist actually achieved in his Dickerson opinion. He successfully froze a set of pre-Dickerson Miranda exceptions which he personally developed during his thirty year tenure on the Court. It is from this perspective that commentators in fact are correct to argue that Dickerson is critical to understanding the legacy of the late Chief Justice.