The Gutting of Miranda Continues.

A bare majority of the Supreme Court today, going along with a trend of interpreting ambiguities in the Miranda rule in favor of the state, created a rule requiring a suspect to explicitly assert their right to remain silent, as opposed to requiring the state to obtain a clear waiver of a suspect's rights before a confession is admissible. In her dissent, Justice Sotomayor summarizes why the ruling is at war with the basic principles of Miranda:

Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent -- which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us.

While this outcome is unsurprising, there are a couple of implications worth noting. First, there was some concern that despite a generally liberal record, Sotomayor might lean excessively toward the state in civil-liberties issues. While today's case doesn't in itself prove that these concerns were unfounded -- Breyer, the liberal justice most likely to defect on civil-liberties issues, joined her dissent -- her strongly worded dissent is, at a minimum, a very encouraging sign.

And second, to return to another of my hobbyhorses, this proves that the much-touted "minimalism" of Alito and Roberts makes very little difference in terms of the bottom-line outcomes of cases. First of all, like Citizens United, this case shows that their minimalism is highly selective; when necessary to reach conservative outcomes Alito and Roberts are perfectly happy to write or join opinions that go well beyond what's necessary to decide a particular case. And, second, "minimalist" refusals to overturn precedents may mean much less than they seem at first glance. It's true that Miranda has been re-affirmed, but like a lot of other Warren and early Burger Court precedents, it has also been steadily drained of most of its bite. What matters is not so much whether or not precedents are explicitly overruled; it's whether they're actually applied in cases going forward.

--Scott Lemieux

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