Federal appeals court builds reputation for bold conservatism

RICHMOND, Va. - Last year, a federal appeals court came to the startling conclusion that for the past three decades, every real and imaginary cop from Joe Friday to Andy Sipowicz didn't really have to give that speech that begins, ''You have the right to remain silent.''

With rulings like that, the 4th U.S. Circuit Court of Appeals has gained a reputation as the most boldly conservative appellate circuit in the nation. It has also issued provocative decisions on tobacco and federal-state power.

On Wednesday, the U.S. Supreme Court will hear the case involving the so-called Miranda warnings, and will ultimately decide whether the 4th Circuit went too far.

In 1966, the high court issued its landmark Miranda decision requiring police to inform suspects of their rights. Over the past 34 years, the Miranda warnings have become such a basic part of law enforcement that just about anyone who watches TV cop shows can recite them.

Last year, however, the 4th Circuit ruled that an obscure 1968 federal law effectively negated the 1966 Miranda decision.

Legal scholars say the ruling is the latest and most startling example of conservative 4th Circuit decisions that could significantly reshape constitutional law.

''They are willing to test the boundaries of present U.S. Supreme Court doctrine,'' said A.E. Dick Howard, a law professor at the University of Virginia.

Many of the appeals court's other conservative rulings have been aimed at reining in federal power.

In 1999 it struck down a portion of the Violence Against Women Act that allows victims of rape to sue their attackers for damages. The appeals court ruled that Congress overreached when it justified the law by citing the government's authority to regulate interstate commerce.

An appeal of that ruling, which stemmed from a Virginia Tech student's attempt to sue two football players she accused of rape, is pending before the Supreme Court.

The 4th Circuit, based in Richmond, hears appeals from Virginia, Maryland, West Virginia, North Carolina and South Carolina.

Judge J. Harvie Wilkinson III, chief judge for the 13-member court, declined an interview, saying it would be improper to talk just days before the Supreme Court hears the Miranda case.

One reason the 4th Circuit's Miranda decision was so surprising was that neither party in the bank robbery case - neither the U.S. Justice Department nor the defendant - focused on the 1968 federal law, which says the presence or absence of a Miranda warning is just one of several factors in deciding whether statements to police were made voluntarily.

Instead, the issue was raised in a friend-of-the-court brief by the conservative Washington Legal Foundation.

''Some would say that's a bit of a stretch,'' Howard said. ''It's unusual.'' Typically, a court ''will confine itself to questions argued by the parties.''

Suzanna Sherry, a law professor at the University of Minnesota, said the court's action was more than a stretch.

''I think it is an extreme case of ignoring the law to reach a particular result,'' Sherry said. ''It seems to me pretty clear that Miranda has to be a constitutional doctrine, and Congress can't overrule it.''

Rodney Smolla, a law professor at the University of Richmond, said the Miranda ruling is a prime example of how the 4th Circuit delves deeply into disputes and does not automatically buy into the legal precedents set by other, more liberal federal courts.

''I was more surprised hearing about it than I was when I actually read the opinion and saw that it's arguably a very close case on its merits - and I'm a strong defender of Miranda,'' Smolla said.

The 4th Circuit's rulings limiting federal power have mostly come on the heels of 1995 Supreme Court ruling that said Congress exceeded its authority when it imposed harsher penalties on gun possession near a school.

Taking a cue from that ruling, the appeals court ruled in separate cases in 1998 and 1999 that the government overstepped its bounds in trying to bar states from selling lists of drivers and in saying states cannot charge a fee for handicapped parking placards.

''They are part of a historic trend in this country,'' Howard said. ''Ten or 15 years ago, nobody talked about the Tenth Amendment,'' which reserves for the states all authority not specifically given to the federal government.

In another blow to federal power, the court - which has seven members appointed by Republican presidents, six by Democrats - ruled the Food and Drug Administration lacked authority to regulate nicotine as a drug. The Supreme Court upheld that decision last month, as it has many other 4th Circuit rulings.

''They are not often reversed,'' Howard said. ''I think that's partly because the 4th Circuit is relatively conservative as the Supreme Court is coming to be.''

Sometimes, though, the 4th Circuit goes too far for the Supreme Court. In a departure from their recent states' rights rulings, the justices in January unanimously reversed the appeals court on driver's license lists.

The 4th Circuit's conservatism is also reflected in its record on capital punishment.

A recent study by Columbia University law professor James S. Liebman found that federal appeals courts nationwide have granted hearings for death row inmates in about 40 percent of cases, while the figure for the 4th Circuit is less than 4 percent.

''There are some who think of it as a hanging court,'' Howard said.

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