So, having read the ruling, like Shani I think the conservative majority on the Supreme Court had something of a point when they argued that remaining silent isn't actually enough to show that you intend to remain silent.
I'll explain. In this case, the plaintiff, Van Chester Thompkins, was arrested for his involvement in a murder. The police read him his Miranda rights and asked him to read out loud the fifth warning indicating his right to an attorney, to make sure he understood English. He did however, refuse to sign a piece of paper indicating that he understood them. Thompkins stayed silent for most of the interrogation and did not say he wanted to stop talking or wanted a lawyer. After three hours of questioning, the police interrogator asked him if he prayed that he would be forgiven for the shooting. Thompkins appealed on the grounds that he meant to invoke his right to remain silent by remaining silent, and therefore the confession was invalid.
Here's the thing -- Tompkins indicated he understood his Miranda rights, but he eventually responded to questioning. Requiring cops to assume silence means that someone is invoking their right to remain silent would end interrogations pretty quickly based on the ability of the interrogator to read someone's mind. By talking after being read his rights and indicating he understood his right to remain silent, it's not exactly far-fetched to think that the police assumed Thompkins had knowingly made a decision to talk to the police. At the same time, as the dissent notes, there is something inherently coercive about sitting in a police interrogation room for three hours.
It's not exactly counterintuitive to assume that speaking after someone tells you to remain silent would be seen as a waiver of that right, as Justice Sonia Sotomayor writes in her dissent. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counterintuitively, requires them to speak." As Scott notes, this ruling is also impossible to defend from an accusation of "judicial activism," since as Sotomayor also points out, the original Miranda ruling asserted that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given, or simply from the fact that a confession was, in fact, eventually obtained." That's, um, a lot more unambiguous than Thompkins' waiver of his Miranda rights.
What I would say is that if you are, as the conservative majority argues, going to conclude that speaking after being mostly silent for three hours of custodial interrogation indicates a waiver of one's right to remain silent, there needs to be a modified Miranda warning that explicitly states that one must verbally and unambiguously invoke your right to remain silent. The court didn't do that, which pretty much opens a big loophole for police interrogators where the courts had previously decided one didn't exist, mostly because the conservatives felt like opening one.
-- A. Serwer
