Antonin Scalia

“ And even if one assumes that the elimination 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. ”

“ 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 decision-making easier rather than more onerous.” (Emphasis 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 replaced 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. ”

“ 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 voluntary confession, even when a Miranda warning or its equivalent has failed to be given— violates the Constitution. ”

“ 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. ”

“ 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. ”

“ These decisions illustrate the principle— not that Miranda is not a constitutional rule— but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision. ”

“ The foregoing demonstrates that, petitioner’s and the United States’ suggestions to the contrary notwithstanding, what the Court did in Miranda (assuming, as later cases hold, that Miranda went beyond what the Constitution actually requires) is in fact extraordinary. That the Court has, on rare and recent occasion, repeated the mistake does not transform error into truth, but illustrates the potential for future mischief that the error entails. ”

“ 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 custodial 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 Clause, governed stationhouse confessions as a “trompe l’oeil”) . ”

“ 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. ”

“ Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda 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 prophylactic Miranda warnings . . . are ‘not themselves rights protected by the Constitution,’” id., at 654 (quoting Tucker, supra, at 444) , to create a “public safety” exception. ”

“ Sullivan, 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) . ”