High Court: Silence Doesn't Invoke Your Right to Silence

According to the conservatives on the Supreme Court, the only way to invoke your right to remain silent these days is to speak. Wacky, anti-defendant and right-wing? Welcome to the Roberts Court.

In a 5-4 vote today, the Supreme Court announced a decision that narrowly interprets criminal defendants' rights in favor of police and prosecutors. In Berghuis v. Thompkins, the conservative wing of the Court ruled (counterintuitively) that a criminal defendant may only invoke their Miranda rights if they make a clear statement to that effect. The conservatives also decided that even a one-word response to any question waives a defendant's right to silence. The practical effect of this decision? It's likely police will now continue to question suspects for hours, even when a suspect maintains an extended silence — in the Thompkins case, police interrogated the suspect for three hours, a period marked only by the suspect's infrequent, one-word answers.

The decision in Thompkins is the latest move by the federal government to narrow defendants' rights under Miranda v. Arizona, the 1966 Supreme Court case that required cops to inform suspects of their right to remain silent. (The most recent effort to limit Miranda rights was the Obama administration's move to provide law enforcement officials more "flexibility" in working around Miranda — an unnecessary expansion of executive power that I joined Change.org's Elizabeth Renter in rejecting here.)

In addition to trimming Miranda rights, the Thompkins decision also carries other disappointing implications. Despite promising the Senate Judiciary Committee that he would lead a more unified Court, Chief Justice John Roberts is presiding over perhaps the most divided Supreme Court since the 1930s. Thompkins is yet another 5-4 decision by the Court in which Justice Anthony Kennedy settled a debate between the arch-conservatives and the moderate justices about how to interpret individual liberties.

Thompkins also demonstrates how willing conservative justices are to rule on cases more broadly than necessary as a way of pushing their activist agenda. As the moderate justices state in their dissent, such a broad decision about invoking one's right to silence was unnecessary in this case. The conservatives' propensity for reaching a broad, conservative decision despite precedent, legislation or the limited issues raised by the litigants — something most vividly on display this term in the landmark campaign finance case Citizens United v. FEC — is a little something that conservatives used to deride as "judicial activism."

There is one welcome break from the ordinary in Thompkins. Despite her history as a hard-nosed prosecutor, and her pro-prosecution vote in a related case earlier this year, Justice Sonia Sotomayor wrote the strongly worded dissent in Thompkins. There, she criticized the conservative majority for its lack of judicial restraint and failure to respect precedent. Though a dissent, the opinion is an encouraging sign that President Obama's first nominee to the Supreme Court may not be so solidly "tough on crime" as some fear.

The decision in Thompkins is just one more reminder that if progressives care about protecting the integrity of our country's legislation and constitutional rights, we should focus more on confirming judges who faithfully interpret our Constitution.

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