# Justices Kagan and Scalia

**URL:** <https://boards.straightdope.com/t/justices-kagan-and-scalia/567368>\
**Category:** Great Debates\
**Created:** [January 12, 2011, 6:23pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368 "2011-01-12T18:23:13Z")\
**Posts on this page:** 2\
**Page:** 5

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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [January 13, 2011, 5:11pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/81 "2011-01-13T17:11:35Z")

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> [@Pierrot\_Le\_Fou](#):
>
> Bricker, it Scalia always just uses his originalist/textualist method and goes where it takes him, can you explain how he came up with the 14-day period in \* Maryland v. Shatzer\*?
> 
> [MARYLAND v. SHATZER](http://www.law.cornell.edu/supct/html/08-680.ZS.html)

Yes.

It’s not a constitutional command, but a judicially crafted prophylactic rule (Davis v. United States , 512 U. S. 452 (1994)). Nor did Scalia create the original rule’s frame; that came from Miranda and Edwards. Stare decisis mandates his continuing with an approach that would not have been created in the first place using his method – that is, he didn’t create Miranda or Edwards, but must fashion current decisions consistent with their commands. Since Edwards itself is “our rule, not a constitutional command,” it falls to the judiciary to further refine it as necessary. Lower courts had uniformly held that the Edwards wall is vitiated by some waiting period, and it thus fell to the Supreme Court to uniformly define that period.

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<div class="post-metadata">

**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [January 13, 2011, 5:13pm UTC](https://boards.straightdope.com/t/justices-kagan-and-scalia/567368/82 "2011-01-13T17:13:31Z")

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> [@Little\_Nemo](#):
>
> Which opinion on flag burning did Scalia write? He concurred on Texas v. Johnson and United States v. Eichman but I thought Brennan wrote those decisions.

So he did. My mistake.

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