How many votes are there to overrule Mapp and Miranda?
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May 21, 2022, 05:21:49 PM
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  How many votes are there to overrule Mapp and Miranda?
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Author Topic: How many votes are there to overrule Mapp and Miranda?  (Read 313 times)
David Hume
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« on: May 11, 2022, 06:00:14 AM »

For Miranda, Alito and Thomas are safe overrule. Gorsuch is likely. Had he be there for Dickerson, he would join Scalia's dissent. Roberts might want to continue carving out Miranda, but not directly overrule. Kavanaugh and Barrett are wild cards. My ratings:

Alito: safe overrule
Thomas: safe overrule
Gorsuch: likely overrule
Barrett: lean overrule
Kavanugh: toss-up
Roberts: lean not overrule

I am not too sure about Mapp. Alito and Thomas are still safe overrule, but not sure about others.
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Person Man
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« Reply #1 on: May 11, 2022, 08:27:44 AM »

For Miranda, Alito and Thomas are safe overrule. Gorsuch is likely. Had he be there for Dickerson, he would join Scalia's dissent. Roberts might want to continue carving out Miranda, but not directly overrule. Kavanaugh and Barrett are wild cards. My ratings:

Alito: safe overrule
Thomas: safe overrule
Gorsuch: likely overrule
Barrett: lean overrule
Kavanugh: toss-up
Roberts: lean not overrule

I am not too sure about Mapp. Alito and Thomas are still safe overrule, but not sure about others.

Wouldn't overruling Mapp basically be ruling that the Tenth Amendment precludes Fourth Amendment rights?
I'm sure that alone would make someone like the Democracy Index downgrade the United States from being a moderately free society to a liberal-dictatorship hybrid.
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politicallefty
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« Reply #2 on: May 11, 2022, 05:32:20 PM »

For Miranda, I'd look at what the Court does in Vega v. Tekoh. That might give us some insight as to where some of the Justices stand. If the Court rules for Tekoh, Miranda is pretty much safe even with this Court. A lot cases over the years have largely narrowed the scope of Miranda. Roberts probably has no problem chipping away, but he won't vote to overrule. I think that's probably the mentality of the Court as a whole.

Overruling Mapp would require overruling it's predecessor from 1914, Weeks v. United States. Even before those cases, there were a number of cases involving a weaker version of the exclusionary rule. I can think of few cases that mean more to the protection of due process and liberty than these. It provides for one of the most important safeguards against tyranny of the state. Eliminating the exclusionary rule reduces the Fourth Amendment to a mere suggestion. If there's anything close to a majority for that, I don't even know what to say.
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Donerail
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« Reply #3 on: May 11, 2022, 05:42:11 PM »

Americans have watched too many episodes of SVU for the Court to overrule Miranda.
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David Hume
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« Reply #4 on: May 12, 2022, 01:01:44 AM »

For Miranda, I'd look at what the Court does in Vega v. Tekoh. That might give us some insight as to where some of the Justices stand. If the Court rules for Tekoh, Miranda is pretty much safe even with this Court. A lot cases over the years have largely narrowed the scope of Miranda. Roberts probably has no problem chipping away, but he won't vote to overrule. I think that's probably the mentality of the Court as a whole.

Overruling Mapp would require overruling it's predecessor from 1914, Weeks v. United States. Even before those cases, there were a number of cases involving a weaker version of the exclusionary rule. I can think of few cases that mean more to the protection of due process and liberty than these. It provides for one of the most important safeguards against tyranny of the state. Eliminating the exclusionary rule reduces the Fourth Amendment to a mere suggestion. If there's anything close to a majority for that, I don't even know what to say.
Vega may not be the best vehicle to overrule Miranda. Even Vega's attorney explicitly said that they don't want to overrule Dickinson and Miranda.
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NewYorkExpress
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« Reply #5 on: May 13, 2022, 06:49:48 AM »

There probably are five votes there (Roberts would probably side with liberals here), but it's an open question whether any state would openly pass a law that seeks to overturn Mapp or Miranda, or whether any justice would be willing to write an opinion that explicitly overturns Mapp or Miranda (maybe Thomas or Alito would, but I'm not certain).
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politicallefty
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« Reply #6 on: May 14, 2022, 01:59:20 AM »

For Miranda, I'd look at what the Court does in Vega v. Tekoh. That might give us some insight as to where some of the Justices stand. If the Court rules for Tekoh, Miranda is pretty much safe even with this Court. A lot cases over the years have largely narrowed the scope of Miranda. Roberts probably has no problem chipping away, but he won't vote to overrule. I think that's probably the mentality of the Court as a whole.

Overruling Mapp would require overruling it's predecessor from 1914, Weeks v. United States. Even before those cases, there were a number of cases involving a weaker version of the exclusionary rule. I can think of few cases that mean more to the protection of due process and liberty than these. It provides for one of the most important safeguards against tyranny of the state. Eliminating the exclusionary rule reduces the Fourth Amendment to a mere suggestion. If there's anything close to a majority for that, I don't even know what to say.
Vega may not be the best vehicle to overrule Miranda. Even Vega's attorney explicitly said that they don't want to overrule Dickinson and Miranda.

That's true, but whatever the opinion is and the various concurrences and dissents are, we could get some insight into where some of the Justices stand on Miranda going forward. But that's only true if Vega wins. If Tekoh wins, it's probably the biggest victory for Miranda rights since the decision itself. In that sense, I don't think any of us are expecting a total win for Tekoh. It's possible they don't even touch the issue at all and find some technicality.

There probably are five votes there (Roberts would probably side with liberals here), but it's an open question whether any state would openly pass a law that seeks to overturn Mapp or Miranda, or whether any justice would be willing to write an opinion that explicitly overturns Mapp or Miranda (maybe Thomas or Alito would, but I'm not certain).

Congress itself tried to overrule Miranda. That was part of what the Dickerson case was about back in 2000. Obviously, it'd would be extraordinarily hard for Congress to try that again even if it saw an opening. However, I wouldn't be so sure about the state level, at least in terms of passing a law after SCOTUS blasting a hole in the decision and effectively inviting a challenge.

I don't want to contemplate a post-Mapp country. It's not pretty. Overall, it's easy to chip away at, as the Court has done quite a few times over the years.
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David Hume
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« Reply #7 on: May 14, 2022, 06:51:03 AM »

[quote author=politicallefty link=topic=493683.msg8604375#msg8604375 date=1652511560

That's true, but whatever the opinion is and the various concurrences and dissents are, we could get some insight into where some of the Justices stand on Miranda going forward. But that's only true if Vega wins. If Tekoh wins, it's probably the biggest victory for Miranda rights since the decision itself. In that sense, I don't think any of us are expecting a total win for Tekoh. It's possible they don't even touch the issue at all and find some technicality.

There probably are five votes there (Roberts would probably side with liberals here), but it's an open question whether any state would openly pass a law that seeks to overturn Mapp or Miranda, or whether any justice would be willing to write an opinion that explicitly overturns Mapp or Miranda (maybe Thomas or Alito would, but I'm not certain).

Congress itself tried to overrule Miranda. That was part of what the Dickerson case was about back in 2000. Obviously, it'd would be extraordinarily hard for Congress to try that again even if it saw an opening. However, I wouldn't be so sure about the state level, at least in terms of passing a law after SCOTUS blasting a hole in the decision and effectively inviting a challenge.

I don't want to contemplate a post-Mapp country. It's not pretty. Overall, it's easy to chip away at, as the Court has done quite a few times over the years.
[/quote]
That would be shocking, given Roberts's position on exclusionary rules.
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