Quietly ticking away in the files of the Supreme Court is a time bomb that seems likely to explode into controversy in the next few weeks–and rock Congress, the Clinton Administration, and the Court itself. The time bomb is Charles T. Dickerson vs. U.S., a petition from a bank-robbery defendant for review of an extraordinary ruling by the U.S.

Court of Appeals for the 4th Circuit, in Richmond, Va. In admitting Dickerson’s incriminating statements into evidence, the 4th Circuit held that the Supreme Court’s 1966 decision in Miranda vs. Arizona was not "required by the Constitution"; that Miranda’s "judicially created rules of evidence" were overruled by Congress in a 1968 statute; and that Miranda should henceforth be ignored by police and courts. "No longer will criminals who have voluntarily confessed their crimes be released on mere technicalities," the 4th Circuit declared. Coming at a time when "Miranda warnings" are more familiar to many television viewers than the words of the Constitution itself–and have been used by almost all police and prosecutors since they were rookies–this may seem a bizarre turn of events. But it’s not quite as bizarre as it appears. The stage was set, to some extent, by the Justices themselves. In a succession of decisions narrowing Miranda’s scope, the Court has called its rules "prophylactic" safeguards that are "not themselves rights protected by the Constitution" and "not constitutional in character." Such statements, plus the long-dormant 1968 statute, provided ammunition for a lonely crusade against Miranda, not by police or prosecutors but by a brainy, conservative University of Utah law professor named Paul G.

Cassell, whose weapons are law review articles and friend-of-the-court briefs. Add a heavy dose of conservative judicial activism on the part of the 4th Circuit judges–who reached out to smite Miranda, even though Justice Department prosecutors had not questioned it and the Supreme Court has never overruled it–and what you end up with is a tough case both for Solicitor General Seth P. Waxman and for the Justices. Waxman, who has obtained two postponements of his deadline to answer Dickerson’s petition for review, risks being pounced on by congressional conservatives if he defends Miranda (rather than the 1968 statute) and by liberals if he does not. On the merits, he is torn between the Justice Department’s duty to respect the Court’s precedents and its responsibility to defend acts of Congress.

And this case pits a statute that had been virtually forgotten against the most famous precedent of all time, one that has become at once a liberal icon, a settled police practice, and a potent symbol of the rule of law. The Justices–who have continued to enforce Miranda in federal and state cases alike while eroding its constitutional underpinnings–must decide whether to embrace it, abandon it, or duck. They could duck either by refusing to hear the Dickerson case or (more likely) by sending it back to the lower courts for further hearings, based on the Justice Department’s contention that the agents who questioned Dickerson had, in fact, complied with Miranda. But their ducking could leave the law in a state of confusion. From its inception 33 years ago, the 5-4 Miranda decision was admirable, in its goal of breathing life into the Fifth Amendment privilege barring compelled self-incrimination, and, at the same time, questionable, in the broad sweep of its judge-made rules. Concerned that the Court’s previous efforts to ensure the "voluntariness" of confessions were inadequate to dispel "the inherent compulsions of the interrogation process," Chief Justice Earl Warren wrote for the majority that henceforth, police must immediately warn all suspects in custody that they have the right to remain silent; that anything they say can be used against them; that they have the right to have an attorney present; and that if they cannot afford an attorney, one will be provided for them. But as Justice Byron R. White, a Kennedy Democrat, wrote in dissent, the four Miranda rules were "neither compelled nor even strongly suggested by the language of the Fifth Amendment [and were] at odds with American and English legal history." White also predicted that "in some unknown number of cases the Court’s rule will return a killer, a rapist, or other criminal to the streets." Conservatives in Congress, infuriated by Miranda, responded in 1968 by attaching to an omnibus crime bill a provision purporting to overrule the decision and reinstate the same "voluntariness" rule that the Court had rejected as inadequate. But the Justice Department, under seven consecutive Presidents, has consistently refused to raise or defend the 1968 statute in court (except in a few lower-court cases). Its implicit assumption has been that the Court would strike down any such frontal attack on its own power to vindicate constitutional rights. This assumption has lost some of its force as subsequent decisions have chipped away at Miranda. And in a lone concurrence in 1994, Justice Antonin Scalia complained of the Justice Department’s "repeated refusal to invoke" the statute, saying that this "may have produced…the acquittal and nonprosecution of many dangerous felons." Meanwhile, Cassell, who once clerked for Scalia, has peppered courts with friend-of-the-court briefs arguing that Miranda was overruled by the 1968 statute and should henceforth be rejected. The 4th Circuit was his first taker, in a 2-1 panel decision on Feb. 8 written by Judge Karen J. Williams. (It was later supported by an 8-5 vote of the full 4th Circuit.) Cassell has also argued in several law review articles that Miranda has, in fact, handcuffed the police, as critics such as White warned from the start, by returning thousands of criminals to the streets. Based on complex statistical analyses, he has claimed that Miranda produced dramatic drops in both the number of confessions and the percentage of crimes solved. Liberal scholars have attacked Cassell’s analysis, arguing that the statistics he used are both unreliable and skewed by trends unrelated to Miranda. They also note that a high percentage of defendants waive their Miranda rights; that Miranda’s impact has been reduced by subsequent decisions; and that even Cassell’s own analysis found no evidence that Miranda has helped many (if any) of the most dangerous criminals–murderers and rapists–escape punishment. The bottom line, in my view, is that Cassell has made a plausible–but hardly overwhelming–case that some more-than-trivial percentage of criminals go free because of Miranda. That’s a serious cost to society. But all civil liberties carry serious costs. Criminals go free every day because the Fifth Amendment bars police from beating confessions out of them, and bars judges from forcing them to testify at their trials. Other criminals go free because the Fourth Amendment bars police from searching everyone they might like to search.

Still others go free because we don’t spend as much as we could to hire more police officers. It seems likely–even to some people who doubt (as I do) that Miranda was right when it came down–that the benefits of keeping it outweigh the costs. Protecting suspects from the possibility of third-degree interrogation techniques is not the only benefit. Another, in the view of many police chiefs and officers, is that Miranda makes their jobs easier by spelling out exactly what they can and cannot do, rather than exposing them to subjective judicial second-guessing on a case-by-case basis. Most important, perhaps, is the benefit that we all derive from stability in the law–from the sense that the Supreme Court will not lightly cast aside major constitutional rulings. That stability would be disturbed by any decision at this late date to tear Miranda out of the constitutional firmament. This is not to suggest that if Congress (or state legislatures) were at some point to see Miranda as a big problem–notwithstanding the paucity of complaints by law enforcement officials in recent years–they would be powerless to do anything about it. Warren wrote in Miranda itself that "Congress and the states are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above." Some scholars have suggested that a carefully crafted law that provided for videotaping interrogations, or for questioning suspects in front of judicial magistrates, might meet that test. But the 1968 statute does not. That’s why the Justices should make it clear that Miranda remains the law of the land.