The recent Supreme Court decision in Berghuis v. Thompkins makes two things perfectly clear: Miranda rights, or what is left of them, will never be the same. And the high court has become a radical and extremist activist body that will take your rights away in a second.
In a 5-4 decision, the highest court in the nation ruled that criminal suspects who want to remain silent and not talk to the police must explicitly tell police they want to be silent. In other words, according to the court, you have to speak up in order to shut up. And that makes no sense at all.
The Thompkins decision was split in the usual way, with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito joining Justice Anthony Kennedy for a predictable conservative majority. Justices Stephen Breyer, John Paul Stevens and Ruth Bader Ginsburg joined Sonia Sotomayor in the dissent.
And this majority has eroded the legacy of the landmark 1966 case Miranda v. Arizona, in which police must tell a suspect during arrests and interrogations of his or her right to remain silent and right to an attorney. That is how the well-known Miranda warnings came into being, a protection against self-incrimination and the abuse of state power. But now, in order to stop an interrogation, suspects must tell the police they are going to remain silent— the same way they must tell police that they want a lawyer.
Van Chester Thompkins, a criminal suspect, remained silent for most of his three-hour police interrogation, until he uttered a few responses that implicated himself in a Jan. 10, 2000, murder in Southfield, Michigan. Thompkins appealed his conviction on the grounds that he invoked his Miranda right to remain silent by remaining silent. Well, the majority said that wasn’t enough.
“Today’s decision turns Miranda upside down,” Justice Sonia Sotomayor wrote in her dissent. “Criminal suspects must now unambiguously invoke their right to remain silent — which, counter-intuitively, requires them to speak.” The justice added that “The broad rules the Court announces today are also troubling because they are unnecessary to decide this case.”
This ruling is typical of a conservative majority that has been out on the attack when it comes to the rights of everyday people. Let us not forget their decision in Citizens United v. Federal Election Commission, which ended the ban on corporate political spending on First Amendment grounds. President Obama said the ruling gives “a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
For all of their posturing at every Supreme Court confirmation hearing, Senate conservatives really do not care about judicial restraint and the threat of judicial activists who write new law from the bench. If they did, they would not confirm radical nominees that, well, legislate from the bench. They key is that these conservatives want judges that will toe the company line of fewer rights for the many, and more rights for the few, especially the corporations. This has been the game plan of the conservative movement since the days of Ronald Reagan, and one must give them kudos for getting it done.
And their latest victory in Thompkins is a decisive blow to an important legal doctrine that all of us with a J.D. learned in law school— and all criminal suspects learn one way or another.
So, given this mess in which we find ourselves, what are our options? First, President Obama can attempt to mimic President Franklin Roosevelt and try to stack the court with one or two extra seats. However, it didn’t work for Roosevelt, whose court packing plan was harshly rebuked, ultimately discouraging any subsequent attempts at the same thing. Plus, there is no evidence that the current president has the stomach or the disposition to take such a risk. But it would provide for outstanding political theater.
Second—and this is the more likely scenario—Congress could add extra seats to the court with a simple majority vote in both houses. This is what FDR should have done. The current number of nine justices is not a rule etched in stone. The number was originally set at six, and that number has fluctuated over time.
But such a move would require guts, courage, and foresight, none of which are readily available in this Congress.
Other than that, there’s always attrition, not to sound too cruel. Perhaps Justice Clarence Thomas will look for another line of work other than his current position destroying the hopes and dreams of black people. Maybe we can hope for another retirement or two on the Supreme Court in the coming years, and more opportunities for Obama to shape the court in his own image, any image other than its current form.