The Nine [69]
The real question in the case was, even if Miranda had been wrongly decided in the first place, could the Court walk away from such a well-known precedent? At the oral argument of the case, Breyer made just this point in describing Miranda as “words that I think probably two billion people throughout the world know. He must be warned, prior to any questioning, that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him. All right? Now, that’s a hallmark of American justice in the last—thirty years?”
The case opened a window on what it meant to be a “conservative” on the Supreme Court—the Rehnquist mode or the Scalia and Thomas approach. To the surprise of many people who followed his career, Rehnquist not only joined the majority in the 7–2 decision upholding Miranda but wrote the opinion himself. Rehnquist’s words in Dickerson v. United States were characteristically terse, and somewhat grudging, with little of his dreaded “reasoning,” but his thinking was plain: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” the chief justice wrote. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.” Scalia, joined by Thomas, wrote one of his classic fire-breathing dissents—and illustrated what a conservative Court, untethered to the rule of precedent, would do to landmarks like Miranda (and Roe v. Wade).
As usual, Scalia couldn’t resist engaging in a little mockery, even of his friend the chief justice. It was true, as Scalia jibed in his dissent, that Rehnquist himself had in the past advocated “an outright rejection of the core premises of Miranda.” And Scalia concluded with the sort of purple prose that attracts attention more than converts: “Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance.” It was clear by this point that Scalia didn’t need better arguments to win over his colleagues; what he needed was different colleagues.
10
THE YEAR OF THE ROUT
By the final years of Bill Clinton’s presidency, the conservative revolution at the Supreme Court was sputtering. On the issues that mattered most to the members of the Federalist Society and their allies—abortion, federalism, church-state relations, the death penalty, among others—the moderates on the Court held sway.
By this time in Congress, the Republicans, well accustomed to majority status, showed less interest in limiting the size of a federal government that they, to a great extent, now ran. In the sphere of church-state relations, the momentum on the right had also slowed. The career of Jay Sekulow was following a classic Washington trajectory: he came to the capital to do good and stayed to do well.
In one respect, Sekulow did succeed in his goal of creating an American Civil Liberties Union of the right. Like the ACLU, Sekulow’s American Center for Law and Justice built a financial empire based largely on direct-mail (and e-mail) contributions from a loyal base of subscribers. But the differences between the ACLU and ACLJ turned out to be more important than the similarities. Sekulow chose not to create an institution like the ACLU but instead to build a monument to himself.
Sekulow drew a salary of more than $600,000 per year, but that was only the beginning of the riches he extracted from the complex financial dealings of the ACLJ and its related organizations. He also turned the nonprofit corporation into a family business. ACLJ raised about