The Rehnquist Court's Fifth Amendment Incrementalism

14 Pages Posted: 20 Oct 2005 Last revised: 3 Apr 2009

See all articles by Stephanos Bibas

Stephanos Bibas

University of Pennsylvania Law School


The conventional academic wisdom criticizes the Rehnquist Court's self-incrimination case law as unprincipled, inconsistent, and results-oriented. This essay, originally presented at a George Washington Law Review symposium on the legacy of the Rehnquist Court, challenges that critique. I argue that the Court deserves more credit, both for the merits of its Fifth Amendment decisions and the way that it has reached them. In fits and starts, the Rehnquist Court retreated from both the expansive rationales and results that reached well beyond the Fifth Amendment's text and history. Out of respect for stare decisis, the Court left in place Miranda's warnings but restricted its exclusionary rule and largely declined to extend Miranda. The resulting doctrine is far from neat and theoretically pure, and the Court's sparse reasoning frustrates scholars. Nevertheless, the resulting rules are clear and narrow enough to guide law enforcement without unduly constraining it.

Viewed this way, the Rehnquist Court's changes merit praise. Slowly, over time, the Court moved toward a consensus that it might never have reached if it had tried to articulate and rely on divisive grand theories from the start. That consensus was more restrained and better grounded than the Warren Court's forays into the field. It came closer to reflecting the historical theory behind the Fifth Amendment itself. It also seems more in keeping with the judiciary's restrained, incremental role in social change.

And yet this stability came at a high price. Ultimately, the piecemeal approach was flawed in other ways. Miranda was a social experiment on a grand scale, and it has failed to yield the results promised. Demolishing the entire Miranda edifice in Dickerson could have spurred legislatures to enact more promising reforms, such as mandatory audio- and videotaping of police interrogations. Leaving it in place as a rigid constitutional rule freezes the flawed status quo in place.

Keywords: criminal procedure, fifth amendment, Rehnquist Court, self-incrimination, Miranda, exclusionary rule

JEL Classification: K40, K42

Suggested Citation

Bibas, Stephanos, The Rehnquist Court's Fifth Amendment Incrementalism. 74 Geo. Wash. L. Rev. 1078 (2006)., Available at SSRN:

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)


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