By Elie Mystal / The Nation
In 1966, the Supreme Court created the now famous “Miranda warnings,” in the seminal case Miranda v. Arizona. The Constitution had arguably always protected the right against self-incrimination in the Fifth Amendment, but the white men who wrote the Constitution never provided practical protections of that right. In Miranda, Earl Warren invented, out of whole cloth, a set of instructions the government would be required to give people in order to protect their rights against self-incrimination, and their right to an attorney (which is found in the Sixth Amendment to the Constitution). Everybody has heard of these warnings: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?” Before the decision in Miranda, police would routinely arrest people and bully them into making incriminating statements without allowing them to talk to an attorney. Ernesto Miranda himself was questioned at his home, “voluntarily” taken to the police station, placed in a lineup, and eventually convinced to sign a confession, without his ever once talking to a lawyer. The idea was to end the practice of law enforcement tricking people out of their constitutional rights.
Today, in a case called Vega v. Tekoh, the Supreme Court rejects that idea. According to the conservative majority, the Constitution still protects people from incriminating themselves. But now, if cops trick or coerce or threaten or brutalize people into giving up their constitutional rights without telling them they have a right to make the intimidation stop, there’s no way to sue the government for the failure to inform victims of their rights. Justice Samuel Alito, writing for a 6-3 conservative majority, might as well have channeled Agent Smith’s famous line from The Matrix: “What good is a phone call if you are unable to speak?”
In Vega, Alito argues that the failure to give Miranda warnings does not result in a Section 1983 cause of action against the government. Section 1983 is the main vehicle for people to sue the government when government actors violate constitutional rights. Alito argues that the Miranda warnings are not a constitutional “right”; they’re just a thing cops can say if they feel like it. If cops violate constitutional rights under the Fifth or Sixth Amendments, victims can still sue the government (if they can somehow prove a violation occurred), or move to have the evidence unconstitutionally obtained against them at trial excluded. But Alito rejects Miranda’s presumption that constitutional rights are violated if law enforcement fails to give the warning. Essentially, Alito argues that you have constitutional rights, but no right to know what those are.
I couldn’t invent a better example of the difference between a Supreme Court controlled by conservatives versus one controlled by liberals than the one given by the court in its decisions in Vega versus Miranda. People often forget that the Miranda case itself was a 5-4 decision over conservative objections. Here, Vega is 6-3, functionally overturning Miranda with all the conservatives in lockstep. If you want robust protections of people’s rights, there is simply no substitute for having liberals control the court. If you want robust protections of gun rights and corporate rights and Jesus rights, by all means, continue allowing the current conservative majority to rule over all.
Now, most people reading already understand that the current court is more conservative and reactionary than the court in 1966. But the opinion in Vega shows how radical and extremist conservatives are even compared to the conservative court of the 2000s. That’s because Vega also functionally overturns Dickerson v. United States, a 2000 case that upheld Miranda warnings. That case was decided 7-2, by the very same court who would go on to anoint George W. Bush as president of the United States later in the year. Ultraconservative William Rehnquist even wrote the majority opinion defending Miranda warnings.
Oh, Rehnquist only grudgingly upheld Miranda. He didn’t give Miranda a ringing endorsement. Instead, he upheld it simply because it was precedent, and that precedent was simply too popular to overturn. He wrote: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”
In her dissent in Vega, Justice Elena Kagan doesn’t spend as much time defending Miranda as she does defending Dickerson. “Dickerson v. United States tells us in no uncertain terms that Miranda is a ‘constitutional rule,’” she writes. Kagan points out that we know the Miranda warnings are part of the constitutional protections enshrined in the Fifth and Sixth Amendments, because courts have turned back legislative attempts to weaken Miranda, including the federal attempt that was at issue in the Dickerson case.
But Alito and the conservative majority (which included Justice Clarence Thomas, who was one of the two dissenters in Dickerson) simply don’t care. Alito recasts the Dickerson opinion as upholding Miranda warnings as an option, not a requirement.
That is the essential difference between the conservatives on the court 20 years ago and the ones appointed this century. They used to do everything they could to bend or break the law toward the Republican Party outcomes they desired, but felt somewhat constrained by prior Supreme Court precedent and overwhelming popular will. Now, they push the law toward their preferred conservative outcomes without regard for past precedent or popular opinion. They have the votes, they have the power, to do what they want when they want to.
The practical effect of this decision will be to unleash already brutal American cops to use even more intimidation and coercion to secure (potentially false) confessions than they already do. Paradoxically, this ruling will do more to deny the constitutional rights of people who are innocent than to infringe those of people guilty of crime. That’s because professional criminals, for the most part, know their constitutional rights. They know they shouldn’t talk to the cops; they know the only word they should say to the police is “lawyer.” You don’t have to tell a street-level drug dealer what to do if he gets held by the cops; he already knows. And you don’t have to tell a banker or a person accused of “white collar” crime what to do either: Those folks have their lawyers on speed dial.
Alito and conservative legal media will hide behind the fact that the Fifth and Sixth amendments still exist. They’ll say people still have the right to remain silent. And that will be true for their rich friends and for people with enough “street smarts” to know how the system works.
But the whole point of Miranda is that constitutional rights should not be tied to whether you have the education and training to know they exist. My kids will know not to talk to cops, because I tell them that every time we see one (I warn my kids about the cops the way other parents warn their kids about taking candy from strangers). But what about kids who don’t have lawyers for parents? Do those kids get less Constitution than mine?
Alito and the conservatives say yes. They always say yes. They always rule in a way that provides constitutional protections to some people, but not all people. And they will continue to rule this way, as long as they are allowed to control the Supreme Court.