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I had definite misgivings about President Obama's selection of Elena Kagan to replace Justice John Paul Stevens. In a just released ruling she sides with the authoritarian wing of SCOTUS, and those misgivings and concerns were realized.

bmaz is a lawyer and writes at Marcy Wheeler's blog:

When Elena Kagan was nominated, there were very few of us voicing strenuous objection, one of the primary reasons I did was her complete lack of experience in the adversarial system, especially with her total lack of knowledge and interest in criminal process issues, which would be critical in the face of the Obama DOJ’s determination to further gut Miranda.

The feared Kagan chickens have come home to roost. The Supreme Court just announced its decision in Howes v. Fields, and the decision is a significant further erosion of the critical Constitutional protections embodied in Miranda. The ruling specifically holds that police are not automatically required to tell prisoners of their legal right to remain silent and have an attorney present when being questioned in prison about another crime.

No democratic appointee to Supreme Court should ever vote to further erode Miranda, and this case did exactly that in a fundamental way. But Barack Obama gave us the authoritarian Elena Kagan who, predictably, did just that. As a prediction: you will be seeing a lot more of Elena Kagan voting with Alito, Scalia and Thomas on crucial law and order/criminal process, not to mention evidentiary, issues. Get used to it.

~bold: mine not authors~

Glenn Greenwald also adds how Kagan's siding with the authoritarians on the court is troubling, if not surprising.

Today, although the overall picture is still incomplete, we have probably the clearest — and definitely the most troubling — sign yet. In Howes, Warden v. Field, released today, the U.S. Supreme Court reversed a decision of the Sixth Circuit Court of Appeals, which (along with the federal district court hearing the case) had held that a prisoner’s Constitutional rights had been violated when prison officials interrogated him for five to seven hours without advising him of his Miranda rights.
Greenwald is not optimistic about further assaults on Miranda with Kagan's vote.
But beyond the specifics of this case, one’s views on Miranda have long been a key determinant of where one falls on the jurisprudential spectrum. Miranda rights have long been a prime bugaboo of the authoritarian Right’s complaints about supposedly excessive protections for criminal defendants (Justices Scalia and Thomas, in a 2000 case, actually argued that Miranda should be overruled). Conversely, the recognition of that right was one of the crown jewels of the Warren Court, and its stalwart protection in robust form has been a litmus test for whether one is devoted to Constitutional safeguards to ensure a fair criminal justice system (President Obama has invoked Terrorism to justify the erosion of Miranda). To watch Elena Kagan side with Justices Scalia, Thomas, Alito, Roberts and Kennedy and against Ginsberg, Sotomayor and Breyer on such a central and long-standing dispute — the scope of Miranda – does not bode well.
As to why Miranda is so important in the criminal justice system.


Remember: people are familiar with "Miranda" rights in the abstract from TV and the like, but people being questioned by the police - especially in a prison setting - often don't realize that they don't have to answer questions, that they are ENTITLED to a lawyer. These rights are critical - that's why the Supreme Court mandated them - and the more they are restricted, the more coercive interrogations can take place.
If President Obama nominates Cass Sunstein to replace Ruth Bader Ginsburg, who very likely could resign in the next two years, the rightward movement of the court will continue unabated.

Originally posted to Progressive Policy Zone on Wed Feb 22, 2012 at 06:25 AM PST.

Also republished by Team DFH, The Rebel Alliance, and Frustrati.

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