Two Views of Constitutional Rights: Anti-Badgering Versus Informed Consent
This is the fifth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.
You can tell there are no Wisconsinites currently on the Supreme Court — otherwise, the Justices would not treat “badger” as such a bad word. In an earlier post, I discussed the Court’s marked left-right divide last term in its cases dealing with police investigation practices. To my mind, the most interesting of these cases was Montejo v. Louisiana, 129 S. Ct. 2079 (2009), which nicely exemplifies the competing views of defendants’ rights on the Court.
In Montejo, the Court substantially weakened the Sixth Amendment right to counsel by overturning Michigan v. Jackson, 475 U.S. 625 (1986). Jackson had prohibited police from initiating the interrogation of a criminal defendant once the defendant had requested counsel at an arraignment.
Why did the Court think Jackson unnecessary? The answer lies in the Court’s concern with “badgering.”