Common Sense and Sensibility Greenhouse

This month, the Supreme Court ruled that police, when questioning a child suspected of committing a crime, must take the suspect’s age into account and may have to provide Miranda warnings in circumstances that would not require the warnings to be given to an adult suspect. The vote was 5 to 4, and the author of the majority opinion was Justice Sonia Sotomayor. The premise that children are different from adults and may feel coercive pressure when an adult would not, she said, was simply one of “commonsense reality.”. . .

So why did this common-sense opinion receive only five votes (the others were Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan) rather than nine? Granted that common sense has no place in the legal pantheon. . .

But by late in his career, Chief Justice Rehnquist had bigger goals in mind, limiting his battles to those that served what he deemed higher institutional needs like preserving the Supreme Court’s prerogative, vis-a-vis Congress, to “say what the law is.” The decision by his protégé and successor to vote in dissent in the new Miranda case has reinforced my belief that Chief Justice Roberts clerked for the wrong Rehnquist.

http://opinionator.blogs.nytimes.com/2011/06/29/common-sense-and-sensibility/?hp