The Supreme Court in 1969 (Nixon wins in 1960).
1953: Earl Warren (Liberal)
1937: Hugo Black (Liberal)
1939: William O Douglas (Liberal)
1949: Tom Clark (Moderate)
1955: John M Harlan II (Conservative)
1956: William J Brennan (Liberal)
1958: Potter Stewart (Moderate)
1962: Warren Burger (Conservative)
1962: Henry Friendly (Conservative)
[4] Liberals
[2] Moderates
[3] Conservatives
Burger was considered for the Whittaker seat historically under Eisenhower, so he seemed like a probable choice for Whittaker's replacement here. Friendly seemed like a straightforward Republican choice.
Cases which go the other way:
- Gibson v. Florida Legislative Investigation Committee (1963) - A weaker right of First Amendment Associational privacy
- Malloy v. Hogan (1964) - States do not have to abide by the privilege against self-incrimination
- Escobedo v. Illinois (1964) - No right to counsel during police interrogations
- Duncan v. Louisiana (1968) - No right to trial by jury in the states
Cases which come out similarly but not the same:
- Griswold v. Connecticut (1965) - Historically Douglas's opinion commanded 4 votes initially (Douglas, Clark, Brennan, and Goldberg). Warren was intent on joining White's opinion. Goldberg brokered a compromise, convincing Douglas to include the Ninth Amendment and Goldberg would write a concurrence explaining it so Warren could join on Goldberg's grounds. No Goldberg means Griswold [1] doesn't mention the Ninth Amendment and [2] probably is a split opinion. My guess is Warren joins Harlan's opinion. Friendly might join it too, but Burger likely wouldn't.
- Miranda v. Arizona (1966) - Even with the Fifth Amendment not incorporated, there were a line of cases based on the Due Process Clause having to do with coercive means of interrogation. Something like that might pop up as a rationale. Justice Clark pointed to the 1963 Due Process Case Haynes v. Washington as a narrower alternative rationale for Miranda, and so something like that would win out instead. Instead of a hard and fast rule like Miranda, it would be a 'totality of the circumstances' analysis.
It's worth considering a few things here.
Even without Miranda, there was a long line of cases about coerced confessions before Miranda. Miranda was, in part, the Court just trying to make the lives of police officers easier.
Brown v. Mississippi, 297 U.S. 278 (1936)
Chambers v. Florida, 309 U.S. 227 (1940)
Canty v. Alabama, 309 U.S. 629 (1940)
White v. Texas, 310 U.S. 530 (1940)
Vernon v. Alabama, 313 U.S. 540 (1941)
Lomax v. Texas, 313 U.S. 544 (1941)
Lisenba v. California, 314 U.S. 219 (1941)
McNabb v. United States, 318 U.S. 332, 343 (1943)
United States v. Mitchell, 322 U.S. 65 (1944)
Ashcraft v. Tennessee, 322 U.S. 143 (1944)
Lyons v. Oklahoma, 322 U.S. 596 (1944)
Malinski v. New York, 324 U.S. 401 (1945)
Upshaw v. United States, 335 U.S. 410 (1948), the Court held that a confession obtained after a thirty-hour delay was inadmissible per se.
Watts v. Indiana, 338 U.S. 49 (1949) (suspect held incommunicado without arraignment for seven days without being advised of his rights in solitary confinement in a cell with no place to sleep but the floor and subject to questioning each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours)
Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights and subject to questioning by relays of officers for periods briefer than in Watts during both days and nights)
Harris v. South Carolina, 338 U.S. 68 (1949) (suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, held incommunicado, and subject to questioning for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft)
Rochin v. California, 342 U.S. 165 (1952)
Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had already been subjected to three days of interrogation)
Fikes v. Alabama, 352 U.S. 191 (1957)
Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible.
Thomas v. Arizona, 356 U.S. 390 (1958)
Payne v. Arkansas, 356 U.S. 560 (1958)
Ashdown v. Utah, 357 U.S. 426 (1958)
Spano v. New York, 360 U.S. 315 (1959). (after eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on the suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake)
Blackburn v. Alabama, 361 U.S. 199 (1960)
Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his wife to headquarters).
Reck v. Pate, 367 U.S. 433 (1961)
Culombe v. Connecticut, 367 U.S. 568 (1961).
Gallegos v. Colorado, 370 U.S. 49 (1962);
Wong Sun v. United States, 371 U.S. 471 (1963).
Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of truth serum to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects).
Lynumn v. Illinois, 372 U.S. 528 (1963)
Brady v. Maryland, 373 U.S. 83 (1963)
Fahy v. Connecticut, 375 U.S. 85 (1963).