WASHINGTON - In the tradeoff between fighting
crime and protecting civil liberties, the Supreme Court in recent
years has settled into a fairly steady pattern, limiting but not
overruling major decisions favorable to criminal defendants that the
court made under Chief Justice Earl Warren.
This trend worries civil libertarians and defense lawyers but, at
the same time, leaves largely intact some of the Reagan
administration's least favorite restraints on official power.
For example, the court has created exceptions to its once-total
ban on the use of unconstitutionally seized evidence, but it seems
unreceptive to Attorney General Edwin Meese 3d's suggestions that
this ""exclusionary rule'' be abolished entirely.
And while refusing last week to impose new limits on police
interrogation of suspects or any limits at all on deception of their
lawyers, the court reaffirmed its established rules that the police
must inform arrested suspects of their rights to remain silent and to
have a lawyer. Those rules were laid down in 1966 in Miranda vs.
Arizona, a decision that Meese has called ""infamous.''
No drastic shift in the balance between official power and
individual rights seems likely under the court's current nine
members. But the method of analysis that the majority has
increasingly employed to limit defendants' rights has begun a process
that could accelerate if President Reagan has a chance to name new
justices who share Meese's views.
Under the court's approach, the scope of constitutional rights is
often determined by ""balancing'' the presumed benefits of a proposed
rule - deterrence of police abuses, for example - against thepresumed
costs, which usually come down to letting some number of criminals go
This approach has deep roots in modern legal thought.
Constitutional rights are no longer seen by many judges and scholars
as absolute barriers to official power grounded in natural law but as
""values'' or ""interests'' that must yield when weightier
governmental interests are marshaled against them.
But while constitutional cost-benefit analysis is not a recent
invention, it seems increasingly to dominate the court's approach.
The latest example was the decision last week that the police in
Rhode Island could legally deceive a defense lawyer to keep her away
while they interrogated a murder suspect and could conceal from the
suspect the fact that the lawyer had called.
Over an unusually heated dissent by three justices, the majority
upheld the suspect's confession and conviction. Rejecting what the
American Bar Association, among others, considered a logical
extension of the Miranda ruling's limits on police interrogation, it
said arrested suspects have no right to be told when a lawyer is
trying to reach them.
When he wrote the Miranda decision, Warren said the rules he was
laying down were required by the Fifth Amendment privilege against
compelled self-incrimination, to dispel the ""compulsion inherentin''
police interrogations behind closed doors. …