Dickerson v. United States, 530 U.S. 428, 30 (2000)

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Cite as: 530 U. S. 428 (2000)

Scalia, J., dissenting

evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power." Elstad, 470 U. S., at 370 (dissenting opinion). Quite so.

III

There was available to the Court a means of reconciling the established proposition that a violation of Miranda does not itself offend the Fifth Amendment with the Court's assertion of a right to ignore the present statute. That means of reconciliation was argued strenuously by both petitioner and the United States, who were evidently more concerned than the Court is with maintaining the coherence of our jurisprudence. It is not mentioned in the Court's opinion because, I assume, a majority of the Justices intent on reversing believes that incoherence is the lesser evil. They may be right.

Petitioner and the United States contend that there is nothing at all exceptional, much less unconstitutional, about the Court's adopting prophylactic rules to buttress constitutional rights, and enforcing them against Congress and the States. Indeed, the United States argues that "[p]rophylactic rules are now and have been for many years a feature of this Court's constitutional adjudication." Brief for United States 47. That statement is not wholly inaccurate, if by "many years" one means since the mid-1960's. However, in their zeal to validate what is in my view a lawless practice, the United States and petitioner greatly overstate the frequency with which we have engaged in it. For instance, petitioner cites several cases in which the Court quite simply exercised its traditional judicial power to define the scope of constitutional protections and, relatedly, the circumstances in which they are violated. See Loretto v. Tele-prompter Manhattan CATV Corp., 458 U. S. 419, 436-437 (1982) (holding that a permanent physical occupation constitutes a per se taking); Maine v. Moulton, 474 U. S. 159, 176 (1985) (holding that the Sixth Amendment right to the assist-

457

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