criminal justice Elie Mystal Supreme Court

The Supreme Court Strips Us of Miranda Warnings

Today, Justice Alito ruled that you have constitutional rights, but no right to know what they are.
(Joseph Prezioso / AFP via Getty Images)

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.

Elie Mystal
Elie Mystal

Elie Mystal is The Nation’s justice correspondent and an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times best-seller Allow Me to Retort: A Black Guy’s Guide to the Constitution. He can be followed @ElieNYC.

11 comments

  1. Yes we still do have the bill of rights, and what harm did the Miranda decision do? Why was it necessary for these a——-holes on the Court to overturn these precedents??? Are they attempting to make it easier to have a authoritarian dictatorship? Their reasoning is even flawed . they said we still have the Amendments, but What harm did Miranda do? None, I would say !

  2. Sorry, but this is a very poorly written and confusing article. Vega v. Tekoh does not strip us of Miranda warnings. While I disagree with the decision, what it does is to prevent people who haven’t been Mirandized from suing cops under the Civil Rights Act. There is nothing in this decision that prevents a criminal defendant from excluding evidence that was improperly obtained by a failure to give Miranda warnings.

  3. Little by little all of our rights are being stripped away so that a fully police state ruled by racists rules us. When are we going to seriously going to start fighting back?

  4. I resent your calling right-wing evil doers such as the Supremes “Conservatives”….It is simply a gentle term covering up their true sadistic motives.

    1. @maxine
      You’re correct. There is a major difference between “right wing” and “conservative.” As Frank Zappa pointed out decades ago, the people who call themselves conservatives are actually fascists. “Conservative” means supporting the status quo, leaving things alone. Some of us old guard Earth First!ers considered ourselves conservatives because we just wanted people to leave the natural world alone. “Right wing” means supporting those with money & power. These positions often overlap, but they are clearly very different.

      1. never lived in a civilized nation?
        “the amerikan liberal/progressive wants to preserve the essence of the past; the amerikan conservative wants more and more progress. the European radical wants to hasten the transformation of the future, the European conservative wants to preserve the essence of the past” Geoffrey Gorer
        no accident nazi USA libs advocate for gun control; in civilized nations only conservatives advocate for gun control—in USA libs emulate nazi policies

  5. Have you noticed how, since the 1990s, Democrat administrations have maintained the lead in stripping away much of a century of progress?

    1. @D.H. Fabian
      It was led by Bill Clinton, who convinced the Democratic Party leadership that if they wanted to regain the White House, they’d have to cozy up to corporate America. Before the primaries, Clinton was present at the Council on Foreign Relations or one of those evil ruling class groups, showing that he was chosen and anointed, not legitimately nominated, just like Hillary in 2016. (I also overheard 2 rich Republicans a couple of months before the general election bemoaning the fact that the big money had shifted from Bush to Clinton, and that his election was a done deal.)

  6. What a despicable person; I hope his soul rots in hell for all eternity!

  7. “in amerika the citizen has been transformed into a client, the worker into a consumer”. Christopher Lasch
    “the problem w amerikans is not Orwellian it is huxleyan: amerikans love their oppression”. Neil Postman

  8. My name is Umesh Heendeniya and I live in Hernando County, Florida. For the past approx. 12 years, FBI Special Agents, FBI Investigative Specialists, and Special Deputy U.S. Marshals from 2 Joint Terrorism Task Forces (JTTFs) have persistently Surveilled, Harassed, Stalked, and Intimidated me, in part because I have advocated for The First Amendment Rights and The Second Amendment Rights of The U.S. Constitution, by HAVING CREATED SEVERAL ONLINE WEBSITES. Thus, Cops have relentlessly abused me (in part, by using such psychological Warfare tactics as Learned Helplessness, Intermittent Reinforcement, etc.).

    The fact is, during the approx. past 100 years, Cops (i.e., FBI Special Agents, FBI Investigative Specialists, ATF Agents, Special Deputy U.S. Marshals, Deputy Sheriffs, State Troopers, Police Officers, Probation & Parole Officers, Prison Guards, etc.) have become extremely powerful– both as a social group and as a bureaucracy– within the Federal, State, County, and Municipal governments and Political Subdivision, across the United States.

    Beginning with the Pendleton Civil Service Reform Act of 1883, followed by the Wagner Act of 1935, then the 1962 U.S. Presidential Executive Order 10988, followed by New York’s Public Employees Fair Employment Act (the Taylor Law) of 1967 which in turn prompted the other States in the Union to implement similar State laws across the country, then the 1969 U.S. Presidential Executive Order 11491, and next Title VII of the Civil Service Reform Act of 1978, have resulted in the Labor Unions of Law Enforcement Officers and Corrections Officers having so much power over the collective bargaining process and over the election of politicians and career prosecutors, that it has become extremely difficult to hold brutal and/or corrupt Cops meaningfully accountable.

    As Mr. Mystal’s article posits, this new Vega v. Tekoh, 142 S. Ct. 858 (2022) case means that Cops will progressively begin ignoring the prior constraints that existed due to Miranda v. Arizona, 384 U.S. 436 (1966) and Dickerson v. United States, 530 U.S. 428 (2000) requirement of a suspect being required to be advised of his/her Constitutional Rights upon being formally arrested. Of course, even before the Vega decision, Cops would routinely ignore Miranda’s “Pre-Arrest Right to Speak to a Lawyer” and Right to Remain Silent. One trick-of-the-trade that Cops use is, one Cop will attempt to get a suspect to forego her Constitutional Rights by speaking with the Cop (for example, by using the ‘Good Cop’/‘Bad Cop’ technique, etc.), and if the suspect refuses or invokes her rights, he will pretend to leave the suspect alone, but will get a different Cop to use a different tactic to get the suspect to speak to that Cop.

    But prior to the Vega decision, there was always a possibility that the Cop and his LE agency could be sued under 42 USC §1983, Monell v. Department of Social Serv., 436 U.S. 658 (1978), or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Now that potential financial deterrence is gone. Thus Cops will realize that via a straight forward cost-benefit analysis, the most that will happen is: the criminal case will be dismissed by a judge should the judge grant the motion to suppress filed by criminal defense lawyer. Well, cases get dismissed all the time in courts across the country. That’s no big deal. But, had the arrested criminal suspect be able to file a successful civil rights lawsuit on the grounds that she was not informed of her constitutional rights upon being formally arrested (i.e., Being read her Miranda Rights), the LE agency that employs the Cop (and the political subdivision of the Federal Government or the State to which the LE agency has to answer to), would have had to pay money damages to the former suspect, and that financial penalty matters.

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