Analysis
One of the easiest arguments a lawyer can make in trying to keep the Supreme Court from heading off in a new direction is to warn that the Court would be putting the law on a “slippery slope,” downward toward some sort of calamity.  And, because that is so easy, and sometimes can be so tiresome, it doesn’t often hold the Justices’ attention for long. It is, thus, a truly rare case when such an argument occupies the Court and the lawyers for an entire, unrelieved hour. Such a case was J.D.B. v. North Carolina (09-11121), heard on Wednesday.
For half of the argument, one group of Justices fretted openly that the Court might just be risking a complete dismantling of the entire regime of “Miranda warnings” that police give to suspects, if such warnings had to be given to a minor whom an officer wanted to question. And for the other half, a different group of Justices insisted that there would be no slope at all, let alone a slippery one, if that was exactly what the Court were to decide.
The issue before the Court is simple: must the age of a minor be taken into account in deciding whether the youth, about to be questioned by police about a crime, is “in custody” and so is entitled to be told about his legal rights before any questions may be asked? The question was treated entirely differently, depending upon which lawyer was at the lectern. When the lawyer for the 13-year-old youth involved in this case — identified only as “J.D.B.” — was arguing, she was met with an avalanche of comments by Justices that there was no stopping point if the Court changed the custody equation to add age as a factor. And when two lawyers opposed to doing that were up, their dire forebodings were heartily disputed from another sector of the bench.
Although Justice Anthony M. Kennedy did some of the worrying over the future implications, at times he seemed somewhere in the middle. In the opening part of the argument, he wondered whether the Court would have to compose a new “Miranda warning,” just for kids, and he expressed concern that a kid, hearing the solemn declaration of “you have a right to a lawyer”, etc., might be terrified. But, in the latter part of the hearing, when a lawyer for North Carolina urged the Court not to disturb the “reasonable person” test for when Miranda warnings had to be given, Kennedy displayed some skepticism about that test in the school setting, saying he had trouble imagining how to apply that test by trying to think like an adult in a seventh-grade class. The comment was a bit ambiguous, but in tone it seemed to imply that the traditional custody test might not fit among youngsters.
Kennedy’s perception of what is at stake may well be crucial: he is the author of the 2004 opinion, Yarborough v. Alvarado, that came the closest to rejecting the idea that a suspect’s youthful age should be taken into account in deciding whether Miranda warnings are to be issued. Kennedy did not react on Wednesday when the author of the dissenting opinion in that prior decision, Justice Stephen G. Breyer, tried to promote the view he outlined there that, for youthful suspects, “custody” should be based on what both a youth and a police officer knew about the youth’s age.
In that opinion, Breyer had written that the “reasonable person” test had been adopted for use in the Miranda inquiry about custody “to focus the inquiry upon objective circumstances that are known to both the officer and the suspect and that are likely relevant to the way a person would understand his situation.”
During Wednesday’s hearing, Breyer — whose enthusiasm for importing the age factor into the custody analysis was matched by that of Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — actually used the concept of his Yarborough dissent to get North Carolina’s lawyer — Attorney General Roy Cooper — to agree that police should take account in deciding whether to give Miranda warnings how a suspect would react if he spoke only Spanish or Ukrainian, or was in a wheelchair, and had some other “objective” characteristic.
Offsetting the comments by those four Justices in favor of making age a Miranda factor were a series of hostile comments about introducing such a factor into the custody inquiry, by Justices Antonin Scalia and Samuel A. Alito, Jr., and, to a less obvious extent, Chief Justice John G. Roberts, Jr.  (Justice Clarence Thomas, who had joined Kennedy’s opinion in the Yarborough case, said nothing on Wednesday.) Each of those three energetically questioned J.D.B.’s lawyer, public defender Barbara S. Blackman, about what would happen to the Miranda regime if the Court were now to clutter it up with requiring police to imagine how a suspect’s unique characeristics would shape his reaction to being confined for questioning.
After Attorney General Cooper had argued that the Yarborough decision meant that lower courts were to make sure “that Miranda stays clear and objective, and that we don’t blur the lines,” Justice Alito commented: “If the law goes down that route, then one of the chief advantages of the Miranda test, which is that it’s a relatively simple objective test, is elimiinated, and the law of Miranda begins to resemble the law of voluntariness. And maybe at that point, there is no longer a strong argument in favor of Miranda, and the voluntariness test will be the sole test.”
The future of Miranda itself did not actually appear to be in jeopardy on Wednesday, but the future shape of it was very much at stake. The outcome may well depend upon whether there is a majority on the Court ready to accept the comment by Cooper, and, near the end of the hearing, by Assistant to the Solicitor General Eric J. Feigin, there to support North Carolina. Cooper said some states were already started “down the slippery slope” in qualifying Miranda‘s simplicity, and Feigin said that “factoring age into the custody test…creates a slippery slope problem. There really isn’t a clear distinction between age and other things such as mental disorders or cultural background…”
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