No, the Supreme Court Did Not Just Obliterate Your ‘Right to Remain Silent’

No, the Supreme Court Did Not Just Obliterate Your ‘Right to Remain Silent’
Photo: Julian Stratenschulte, AP

Feeling overwhelmed by the sheer number of unsettling Supreme Court decisions coming down this summer? You are definitely not alone. While today, most of the nation will be focused on the court’s decision to set the clock on reproductive rights back to Leave It to Beaver hour, Roe v. Wade isn’t the only case this week to get mangled by a room full of partisan ideologues.

The famous Miranda v. Arizona case, popularised through several thousand cop-centric movies and TV shows for the Miranda Rights declaration, has found its way back into headlines this week. Many of those headlines heavily imply that the court has reversed Miranda outright. Others are just too myopic in their translation of this ruling to be of any real service to anyone. If you were to search for “Miranda” on social media right now, I guarantee that you’d find at least a couple hundred posts claiming the “right to remain silent” is as dead as Dada.

That right is very much alive. If you take away one thing from this article, let it be this: You still have the right to refuse to talk to the police. Nothing that happened this week changed that. And if for some reason you are interrogated by police, and they do not read you your rights beforehand, your lawyer should be fighting to make those statements inadmissible. No matter what you read, the nine justices did not just give the green light to police and prosecutors to start using un-Mirandized confessions in court.

What the decision in this case, Vega v. Tekoh, actually means is that you no longer have the ability to sue the cops if a statement gets introduced in court against you, even if your rights hadn’t been read at the time of the interrogation. These rights include, as you’re probably aware from those movies: the right to remain silent, as any statements you make can and probably will be used against you in court, and the right to legal counsel, even if you’re broke and can’t afford it.

The majority opinion in Vega states that whether a defendant can sue or not, they can still seek “the suppression at trial” of un-Mirandized statements. So again, your right to remain silent is upheld. That’s a good thing.

So if the most substantive provisions of Miranda are still intact, why is everyone freaking out? Because this is a huge win for dishonest cops.

In a statement, the American Civil Liberties Union supported the high court’s dissenting opinion word for word: “While the court’s decision does not as a formal matter reduce the police officer’s obligation to issue Miranda warnings — or what individuals in police custody should do or say (or not do and not say) — it cuts off a critical means by which people whose rights have been violated can actually vindicate the promise of those rights.”

To start, the issue at hand is whether receiving a Miranda warning is inherently a right guaranteed to you under the Fifth Amendment — which, among other provisions, declares that people have a right not to be forced to incriminate themselves. This privilege was written in the spirit of protecting innocent people from being coerced into responding to questions that might implicate them in crimes they didn’t actually commit. It has historical roots in the fact that, for centuries, if not millennia, many justice systems did rely heavily on torture to extract confessions from people. (And though by the 17th century it had become common knowledge that you could get people to confess to basically anything using pain as an incentive, the United States decided to give it another shot not too long ago.)

The question is whether the Fifth Amendment actually imparts a right to a Miranda warning. Ernesto Miranda, the individual for whom the warning is named, was not born until 1941. The case that inspired the most oft-repeated phrase in television history wasn’t decided until 1966. But the fact that we don’t have a time machine to go back and amend a 240-year-old document doesn’t necessarily mean it only applies to situations relevant 240 years ago. It’s the court’s job to interpret the meaning behind the text and apply it, as fairly as possible, to any new and unforeseen circumstances that may arise. That’s where the arguing begins.

In the late 1970s, in an effort to ensure people’s constitutional rights were being taken seriously, Congress passed a law handing them the right to sue almost anyone — police officers, in this case — for depriving them of “rights, privileges, or immunities secured by the Constitution and laws.” The Fourth Amendment, for example, offers an explicit guarantee against “unreasonable searches and seizures” by the government. So if a cop enters your house without a warrant, finds your stash, and then arrests you for it, this law (14 U.S.C. 1983) says that you can sue. The question, basically, is whether Miranda warnings share the same association with the Fifth Amendment that legal warrants share with the Fourth.

Boiled down, the Supreme Court’s majority has decided that Miranda is not a right, after all. Instead, it’s what is often referred to as a “prophylactic rule.” (This has nothing to do with condoms, though the metaphor is enticing.) Under this view, issuing a Miranda warning is something that police are required to do today in order to prevent the justice system from, somewhere down the line, violating a suspect’s right against self-incrimination. In other words, as the opinion goes, Miranda warnings are not inherently required by the Constitution. (Another pro-police argument we’ve heard in Vega is that it is the prosecutors and not the police who’d really be violating this right anyway, which is all very convenient because prosecutors are basically immune to lawsuits.)

A little known fact: Police did not interrogate people in this country 240 years ago when the Constitution was written. That is a relatively recent development.

In the 1930s, police officers in Mississippi, while pursuing a white man’s murderer, strapped three Black men down and brutally whipped them with a leather strap until they confessed. The beating would not stop, the three men were told, until a confession was had. The case against them was ultimately tossed by the Supreme Court, but for decades after, it was left up to individual judges to decide whether confessions had or hadn’t been coerced out of people on a case-by-case basis.

Long story short, what was ultimately decided is that all police interrogations are inherently coercive. And that is certainly true today. Police are trained to use an array of psychological tactics, not the least of which is lying. It turns out most people don’t handle this kind of pressure very well, even if they’ve never committed a crime in their life. We understand this better today than we did a half century ago, given that hundreds of cases overturned on DNA evidence have involved false confessions. False confessions are different from those elicited under physical torture, though, and they are now an accepted and widely studied psychological phenomenon unto themselves.

To enable police to continue using these patently coercive tactics while not depriving people in custody of their Fifth Amendment privilege, the courts determined the least the cops could do is remind people ahead of time they have a right to keep their mouths shut. It’s a very good privilege, and you should absolutely take advantage of it, no matter the circumstance.

So the ruling that spurred this whole discussion basically found that receiving a Miranda warning is not actually a constitutional right, it’s merely a rule that was created to prevent the justice system from violating a preexisting right; therefore, you cannot sue a police officer under a law designed to enforce rights, because, supposedly, it does not extend to rules. And that’s about as clear as it gets.

Now if that sounds to you like someone’s splitting hairs, you would not be alone. The Supreme Court’s liberal wing — Kagan, Sotomayor, Breyer — say Miranda is a “necessity” to ensure to a defendant’s Fifth Amendment privilege isn’t violated. In other words, the dissenting liberal justices find the right and the rule are non-segregable. The Fifth Amendment and the rule protecting it have collapsed into each other, the dissenting justices said, and you can no longer split them apart.

The court’s conservative wing points to another case upholding Miranda, though, one known as Dickerson v. U.S., which describes Miranda as a “constitutional rule,” a “constitutional decision,” and a “constitutional guideline.” The conservative justices seem convinced, at least in this case, that the word “right” is absolutely essential and that its absence is very intentional.

The liberal justices, however, believe the meaning is ultimately crystal clear: “Over and over, Dickerson labels Miranda a rule stemming from the Constitution,” Kagan, who authored the dissent, writes. She goes on to note that Dickerson established Miranda as being so vital to the Fifth Amendment that Congress is prohibited from passing a law undermining Miranda’s protections. (Congress can, however, pass laws to strengthen it, and could pass a law today reversing the outcome of this ruling, however unlikely that may be.)

The liberals also reject the ruling on more textual grounds than the conservatives. Miranda granted the defendant in Vega a “legally enforcement entitlement — in a word, a right — to have his confession excluded,” Kagan says, adding that the language of the law in question — the one that lets you sue the cops — says that anyone who deprives another of their rights “secured by the Constitution” can be held civilly liable.

As Kagan points out, the right to remain silent is still one that’s violated pretty often. What the court has effectively done is strip people who’ve been deprived of that right the ability to seek a legal remedy for the harms they’ve suffered.

Adds the ACLU: “In that sense, it’s a sad day for Miranda, the Bill of Rights, and the most basic conception of accountability.”