In 1966, the Supreme Court created the now famous “Miranda warnings”, in the seminal case Miranda v. Arizona. The Constitution arguably always protected the right against self-incrimination in the Fifth Amendment, but the white men who drafted the Constitution never provided practical protections of that right. In Miranda, Earl Warren invented, from scratch, a set of instructions that the government would be required to give to 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 ). Everyone has heard of these warnings: “You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to a lawyer. If you cannot afford a lawyer, a lawyer will will be provided. Do you understand the rights that I have just read to you? Before the decision of Miranda, police routinely arrested people and intimidated them into making incriminating statements without allowing them to speak to a lawyer. Ernesto Miranda himself was interrogated at his home, taken “voluntarily” to the police station, put in a queue, and finally convinced to sign a confession, without ever having spoken to a lawyer. The idea was to end the practice of law enforcement that diverts people from their constitutional rights.
Today, in a case called Vega vs Tekoh, the Supreme Court rejects this idea. According to the conservative majority, the Constitution still protects people against self-incrimination. But now if the cops trick or coerce or threaten or bully people into giving up their constitutional rights without telling them they have a right to stop the bullying, there’s no way to prosecute the government for not informing victims of their rights. Judge Samuel Alito, writing for a 6-3 conservative majority, might as well have channeled Agent Smith’s famous line of The matrix: “What good is a phone call if you can’t talk?”
In Vega, Alito argues that failure to give warnings to Miranda does not result in a cause of action under Section 1983 against the government. Section 1983 is the primary instrument for individuals to sue the government when government actors violate constitutional rights. Alito argues that Miranda’s warnings are not a constitutional “right”; it’s just something the cops can say if they feel like it. If the cops violate constitutional rights under the Fifth or Sixth Amendments, victims can always sue the government (if they can somehow prove a violation took place) or request that the evidence obtained unconstitutionally against them at trial are excluded. But Alito rejects Mirandapresumption that constitutional rights are violated if law enforcement fails to give warning. Essentially, Alito is arguing that you have constitutional rights, but not the right to know what that is.
I could not invent a better example of the difference between a Supreme Court controlled by conservatives and a Supreme Court controlled by liberals than that 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 stunning Miranda with all the Conservatives neck and neck. If you want strong human rights protections, there is simply no substitute for the Liberals controlling the court. If you want strong protections for gun rights and corporate rights and Jesus rights, by all means continue to allow the current conservative majority to rule everything.
By now most readers already understand that the current tribunal is more conservative and reactionary than the 1966 tribunal. 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 reverses Dickerson v. United States, a 2000 case that confirmed Miranda’s warnings. This case was decided 7 to 2 by the same court that would nominate George W. Bush as President of the United States later that year. Ultraconservative William Rehnquist even wrote the majority opinion defending Miranda’s warnings.
Oh, Rehnquist only reluctantly supported Miranda. He didn’t give Miranda a resounding endorsement. Instead, he upheld it simply because it was a precedent, and that precedent was just too popular to overturn. He wrote: “Miranda has become integrated into routine policing practice to the point where warnings have become part of our national culture.
In his dissent in VegaJudge Elena Kagan doesn’t spend as much time defending Miranda as she does while defending Dickerson. “Dickerson v. United States unequivocally tells us that Miranda is a “constitutional ruler,” she writes. Kagan points out that we know Miranda’s warnings are part of the constitutional protections enshrined in the Fifth and Sixth Amendments, as courts have pushed back against legislative attempts to weaken Mirandaincluding the federal attempt that was at issue in Dickerson Case.
But Alito and the conservative majority (which included Justice Clarence Thomas, who was one of two dissenters in Dickerson) just don’t care. Alito recasts the Dickerson opinion as confirming Miranda warnings as an option, not a requirement.
This is the essential difference between the curators at court 20 years ago and those appointed this century. They used to do whatever they could to bend or break the law toward the Republican Party results they wanted, but felt somewhat constrained by Supreme Court precedent and overwhelming popular will. Now they are pushing the law toward their preferred conservative outcomes without regard to past precedent or popular opinion. They have the votes, they have the power to do what they want when they want.
The practical effect of this decision will be to free up already brutal American cops to use even more intimidation and coercion to extract (potentially false) confessions than they already do. Paradoxically, this decision will do more to deny the constitutional rights of innocent people than to infringe those of people guilty of a crime. This is 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 have to say to the police is “lawyer”. You don’t have to tell a street drug dealer what to do if he’s detained by the cops; he already knows. And you don’t have to tell a banker or someone accused of a “white collar” crime what to do either: those people have their lawyers on speed dial.
Alito and the conservative legal media will hide behind the fact that the Fifth and Sixth Amendments still exist. They will say that people always have the right to remain silent. And that will be true for their wealthy friends and for people who are “smart” enough 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 the cops because I tell them every time we see one (I warn my kids about the cops like other parents warn their kids about taking candy from strangers) . But what about children who do not have a lawyer for parents? Do these kids get less constitution than mine?
Alito and the Conservatives say yes. They always say yes. They still govern in a way that offers constitutional protections to some people, but not to all. And they will continue to govern that way, as long as they are allowed to control the Supreme Court.