Signs and Portents from the Supreme Court Landmark rulings on abortion, Miranda make headlines -- and shape Presidential campaign.

Liz Callahan

Wednesday, June 28, 2000 -- NEW YORK (AmpolNS)

There couldn't be two Supreme Court rulings more telling about the current makeup of the court and portentous of the ramifications of this year's Presidential elections than Monday's ruling on the Miranda warning and this morning's ruling overturning a Nebraska law limiting late term abortions.

The latter ruling was handed down on a 5-4 vote along largely socio-ideological lines. Justices Seven Breyer (who wrote the majority decision), John Paul Stevens, Sandra Day O'Connor, David Souter and Ruth Bader Ginsburg ruled that a court of appeals was correct when it overturned a law making it a crime to perform late term abortions because the law fails to make an exception allowing procedures to preserve the life or health of the mother. Breyer wrote in his ruling that a state may promote -- but not endanger -- a woman's health when it regulates methods of abortion.

Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy voted to overrule the appeals court; Thomas, writing for himself, Rehnquist and Scalia, invoked religious right-wing rhetoric by essentially tagging late term abortions "infanticide" -- practically dismissing the right to life of the mother, the potential impact on the mother's family, and the dangers of government dictating personal health decisions.

Monday's Miranda decision, however, surprised many court watchers in two ways: while most correctly expected that the 1966 Supreme Court decision that requires law enforcement officers to inform people being arrested of their constitutional rights would be upheld, many were caught off-guard by the 7-2 margin of the Court's ruling.

Also, the ruling written by Rehnquist said that the reading of Miranda rights is practically mandated by the Constitution. This particularly strong wording served to devastate arguments made in favor of a less stringent federal statute that allowed voluntary confessions even when police fail to give the warnings.

The story behind this element of the ruling, however, is worth noting :
with their new ruling, the Supreme Court overturned a ruling by the 4th U.S. Circuit Court of Appeals permitting a confession made by a robber to police -- before they read him his rights -- to be used in his 1997 trial in Virginia on bank robbery charges.

The appeals court cited Section 3501 of the Omnibus Crime Control Act of 1968, which says the failure to read the rights is one of several factors in deciding whether the statement was made voluntarily -- and which the US Government has never sought to enforce due to the 1966 Miranda ruling.

But neither party in the bank robbery case -- the defendant nor the Justice Department -- focused on the 1968 law.

The issue was raised in a friend-of-the-court brief by -- you guessed it -- a hard-right organization going under the name of the Washington Legal Foundation. It is rare for a court to rule based on such a brief -- rulings are almost always based on what both the prosecution and defense argue in court and mention in court filings.

The Supreme Court's ruling comes as a slap in the face both to right-wing organizations seeking to influence the judicial branch and a strong rebuff of conservative judicial activists on the 4th Circuit Court who seem hell-bent on rewriting the Constitution to fit their agenda -- criticism which has also been made against rulings of the 8th Circuit Court.

The only two Justices to oppose the reinforcement of Miranda were Scalia and Thomas. More than a few concerned citizens are wondering what might happen if, say, George W. Bush were elected -- given the strong likelihood that there are likely to be at least two vacancies on the court over the next four years.

And, as we all know, there are plenty of conservative, Federalist-friendly judicial activists on the appeals courts that Bush might seek to promote in an effort to essentially "rewrite" the Constitution along the luddite lines of the Thomas-Scalia school of jurisprudence.