ML responds: Just to be clear — I did not attack Roberts’s nomination, nor suggest that there was anything untoward about Roberts’s decision not to defend the statutes in Metro Broadcasting. To the contrary, I wrote: “I should make clear that I although I do not agree with the substantive equal protection argument that John Roberts made in Metro Broadcasting, I do not think it was plainly inappropriate for the Acting SG to file a brief attacking the statutes, assuming the President had concluded that they were unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans.”

ML responds: Sorry, Kent, but the Court didn’t say there was support in its “precedents” for the view that section 3510 could be reconciled with Miranda. What the Chief Justice wrote was that “there is *language* in some of our opinions that supports the view taken by [the Fourth Circuit].” Immediately after that modest, half-sentence concession, the Chief then spent several paragraphs explaining in detail why the court of appeals’ conclusion could *not* be reconciled with numerous *holdings* of the Court, i.e., with its “precedents.”

Not surprisingly (in my view), the SG concluded that he could not, consistent with the high traditions of the Office, urge the Court to treat some stray language as trumping numerous Court *holdings.*

It appears evident, Kent, that you and I will respectfully continue to disagree on whether there was a reasonable, SG-worthy argument that section 3501 could be reconciled with Miranda and its progeny. But be that as it may, I can assure you that the SG — as well as the AG and the President, and the Congress that enacted 3501 — sincerely believed there was no such argument available, which is all that matters for purposes of my post.

ML responds: Thanks, Petunia. I had been wondering about that myself. In the Winter Park case before the D.C. Circuit, the Civil Rights Division in the Reagan (not Bush) Administration did file a brief that, according to the case caption, “urg[ed] the appeal be delayed pending the Supreme Court’s decision.” Presumably this refers to the Court’s then-pending decision in Croson — and after oral argument in the D.C. Circuit, the SCOTUS decided Croson, but did not resolve the Fullilove question of the type of scrutiny to be applied to *congressionally authorized* affirmative action. See, e.g., the O’Connor plurality, 488 U.S. at 486-91; and the Kennedy concurrence.

On the other hand, in his Winter Park opinion, Judge Edwards indicates that the Civil Rights Division took at least some view on the merits, too — at the very least, on the merits of the FCC’s *administrative* policy: “Metro, Winter, and the Department of Justice as amicus curiae argue that the Commission’s use of a qualitative enhancement for minority ownership violates the equal protection clause of the Fifth Amendment.” 873 F.2d at 352. On the other hand, he also states that “even the Justice Department has conceded that [a prior D.C. Circuit case upholding the same preference policy] controls the disposition of this case.” Id. at 353.

As you note, the Civil Rights Division in the Reagan Administration had opposed the constitutionality of the FCC’s own preference policy, *before* Congress stepped in. The brief in Winter Park presumably was filed after the first of the congressional appropriations restrictions was enacted (and signed without objection by President Reagan) — and perhaps after the second such bill was enacted, as well. Based on the clues noted above in the Winter Park opinion, it’s hard to discern what, if at all, the Civil Rights Division argued in 1988 respecting *congressionally mandated* preferences, and about whether strict scrutiny should apply to such federal legislative enactments (the Fullilove question later discussed by the SCOTUS in Metro Broadcasting and Adarand).

I have not been able to find the CRT Winter Park brief online, but would be very interested to learn what its arguments were, if anyone has it available. Obviously, you are correct that if that brief (in the prior Administration) had argued that the 1987 and/or 1988 Appropriations Acts were unconstitutional, that historical fact would likely have played a significant role in the discussions among Acting SG Roberts, the White House and the FCC concerning what the U.S. should do in the Metro Broadcasting case in the SCOTUS.

The dissent’s conclusion that the statute could not be upheld without overruling Miranda was coupled with a conclusion that the statute could not be struck down without overruling other precedents. If one adopts this view, then there was no alternative to overruling a precedent, and the body of precedent as a whole did not preclude defending the statute.

The Fourth Circuit upheld the statute, obviously without overruling a Supreme Court precedent, which it can’t do. Although the Supreme Court reversed, it “concede[d] that there is language in some of our opinions that supports the view taken by that court.”

Waxman’s choice to attack the statute instead of defend it was one of policy, not conclusive precedent. It was not the only reasonable option. Had a Republican administration been in office at the time, I have no doubt the SG would have been on the other side.

ML responds: By use of the words “reasonable” and “feasible,” I’m not suggesting that there weren’t *nonfrivolous* — i.e., non-sanctionable — arguments that could be (and were) made on behalf of section 3501 without suggesting that Miranda and numerous cases be overruled. But the SG’s standard, in practice, has been a good bit more demanding than that — in effect, allowing only for arguments that would not undermine the SG’s well-deserved reputation for integrity and first-rate briefs. It was the SG’s judgment in Dickerson — a judgment that I share — that the Fourth Circuit’s opinion was unsustainable (and would be seen as such by the Court), and that it would have been institutionally irresponsible and embarrassing for the SG — in a Democratic *or* a Republican Administration — to file a brief such as you describe in Dickerson. You may, of course, disagree. But the important point is that that was the sincere judgment that the SG reached — a judgment that happens to have been confirmed by the Court itself.

As for Justice Scalia’s view that governing precedents would have to be overruled either way: I’m not sure it really matters for present purposes whether he was right or not — but he wasn’t. Whereas Scalia himself conceded that his opinion would have necessitated vast overrulings, including of thelandmark Miranda case itself, Chief Justice Rehnquist did *not,* in fact, find it necessary to overrule Hass, Quarles, Elstad, et al. — a conclusion that he and six other Justices shared with the SG.

I disagree. Dickerson v. United States, 530 U.S. 428 (2000) fell into none of those categories. That case involved Congress’s abrogation of the Miranda rule. The Court itself on several occasions had referred to Miranda as a prophylactic rule and not a constitutional right, so the argument that Congress had the power to change it was entirely plausible, although ultimately unsuccessful.

ML responds: I respectfully beg to differ, Kent. The non-defense of section 3501 in Dickerson falls squarely within the “rule” established by traditional DOJ practice, not outside it. As Solicitor General Waxman explained in great detail both in his letter to Congress and in his briefs to the Court, the Department of Justice, including the SG and the AG, as well as the President, concluded after very careful and widespread debate and deliberation that section 3501 could be upheld only if the Court were to *overrule* Miranda and numerous other cases in which the Court had applied Miranda to state-court convictions — and that, pace Paul Cassell, no reasonable argument to the contrary was feasible.

Indeed, regardless of whether Miranda left Congress some opening to establish evidentiary rules to ensure voluntariness different from those prescribed in Miranda, section 3501 would have reinstituted the very same “totality-of-the-circumstances” test that the Court had expressly invalidated in Miranda itself. Accordingly, the Congress that enacted section 3501 did so expressly on the theory that it could come into operation *if and when the Court overruled Miranda.*

Moreover, all nine Justices in Dickerson — the majority and the dissent — agreed with SG Waxman that Miranda and numerous other cases would have had to be overruled in order to uphold section 3501. Justice Scalia, for instance, stated in dissent that “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.”

You may disagree in this respect, as Professor Cassell did, with the conclusions of the President, the AG, the SG, the Congress that enacted the law, and all nine Justices. But the salient point for present purposes is that the SG (and AG and President) *had* sincerely concluded that this was, in fact, a case in which the SG would have to urge overruling of Supreme Court precedents in order to defend the statute. And although on very rare occasion the SG does urge the overruling of governing SCOTUS precedent — see, e.g., Eichman, Agostini — the general practice of the Department is not to do so, and not to defend federal statutes that are unconstitutional under such governing precedent.

Disclosure: I advised the SG during the deliberations concerning, and briefing of, Dickerson.