Roberts and Alito Legislating From the Bench

This week, the Supreme Court heard arguments in Maryland v. Shatzer, a case involving the constitutional right to counsel during police questioning. The questions asked by the Justices – even the most conservative of them – exposed one of the great lies the Far Right tells about our nation’s judiciary: that courts should not make policy.

In 1981, the Court held that once you tell the police that you want your lawyer, the questioning must stop either until your lawyer arrives, or you yourself initiate further communication. This rule protects you from being badgered by the police to change your mind before the lawyer shows up.

In 2003, after Michael Blaine Shatzer asked for a lawyer, the police dropped their investigation and released him from their custody. Three years later, new evidence arose in the case. The rule established in 1981 would suggest that the police were still barred from questioning Shatzer. That was the issue before the Court this week. To help them analyze the case, the Justices asked the sorts of hypothetical questions they often ask. The Washington Post reports:

Justices seemed generally supportive … that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.

[Chief Justice] Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer. "You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said. ...

[T]he justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.

Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?

When [Shatzer’s attorney] said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"

[Then] Alito raised the hypothetical ante to a crime committed 40 years later ...

If the police let a suspect go after he asks for a lawyer, does the Constitution prohibit the police from questioning him again half a century later? Should there be limits? What should they be? How do you decide?

The Justices deciding this case are not simply calling balls and strikes, the insulting umpire analogy that Roberts infamously used during his confirmation hearings. Roberts, Alito, and the other Justices are weighing the consequences of different possible interpretations of the 1981 precedent as they apply it to a new and unforeseen situation.

Just as legislators do, they will be making policy. And that's fine. That's what courts are supposed to do. It's inherent in interpreting the law in difficult cases such as this.

So the next time the Washington Post quotes a right wing propagandist condemning progressive judges for making policy or "legislating from the bench," perhaps the Post will do more than collaborate by simply reprinting the accusation. Perhaps the Post will cite its own reporting and point out that all judges weigh policies and make law, but that the Far Right is silent when conservative judges do it.

PFAW