The Usual Suspects

The Usual Suspects

Sarah Leonard: The Usual Suspects

In Tuesday’s Supreme Court decision in Berghuis v. Thompkins, Justice Anthony Kennedy’s wandering sense of jurisprudence led him down a rabbit hole where one must speak to invoke one’s right not to speak, and Miranda is turned (according to Justice Sotomayor) “upside down.” Slate ably summarizes:

The case in question involved a Michigan man, Van Thompkins, who was arrested for murder in 2000. Thompkins kept quiet during a nearly three-hour police interrogation, then answered “yes” to the question “do you pray to God to forgive you for shooting that boy down?” Thompkins argued that he had invoked his Miranda rights to remain silent by actually remaining silent, but he was eventually convicted of murder in 2001. The conviction was overturned after the 6th Circuit appeals court agreed with him, but today’s ruling reinstates his conviction and forces suspect[s] to inform police if they want to invoke their Miranda rights.

Kennedy’s majority opinion, explains Adam Liptak, argued that “a more sensible approach was to put the burden [not on the state, but] on suspects to invoke their rights. ‘A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.'” Of course, no uncounseled suspect in the real world will ever know that s/he has waived her/his rights in that way. When Kennedy makes a fundamental right to remain silent into an inadvertently waivable right that cannot be asserted by simply being silent, he sets a trap for those not well-versed in their rights, those who don’t speak English well, or those who in the midst of a terrifying situation experience a moment of confusion.

Kennedy?s senseless, gut-based decision here is reminiscent of his conviction when outlawing so-called “partial-birth abortion,” that “while we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Given the apparent inseparability of his decision-making from some sense of personal morality not easily corralled into a comprehensible system of jurisprudence, it seems clear that Anthony Kennedy is a spiritual judge, more zeitgeist-y than systematic, moved by politics more than precedent. Jeffrey Toobin has written that Kennedy?s judicial philosophy has long been the most difficult on the Court to define. “It was centered on his perception of the judge–and of himself–as a figure of drama and wisdom, more than any specific ideology. Kennedy believed that, at home and abroad, the rule of law was protected by enlightened individuals as much as by any identifiable approach to the law.” (The Nine, 380). Lately, Justice Kennedy’s drama and wisdom have, with some exceptions, tended to complement the preferences of four fellow justices who are dedicated to keeping Ronald Reagan’s spirit alive on the bench. The Berghuis v. Thompkins decision reflects Kennedy’s genteel synchronicity, and that of four GOP loyalists, with a security-at-all-costs tendency that has seized the national Republican Party with all the force of a religious revival.

In Arizona, weighting the scales of justice against any suspect has been even more dramatically enacted than at the high court. The notorious Arizona law passed in April allows police to arrest anyone they think looks suspiciously like an illegal immigrant and does not have identification with them proving otherwise. It has sparked outrage on two counts: first, it’s transparently racist, a license to terrorize Mexican immigrants (or those judged to look like them). Second, like the Berghuis decision, it insults our sense of due process, of being surrounded by certain inviolable protections that counter the imbalance between an armed law enforcement official and the person they want to arrest. It asks the public to trust law enforcement blindly, to allow security concerns to shrink our protections until we stand vulnerable to arbitrary arrest and coerced self-incrimination.

It’s only a short step to place these developments in a trajectory, particularly aggressive since September 11, 2001, toward subordinating the rights of suspects to our desire for stronger, harsher security measures. From Guantánamo to Bagram, the whole world has seen America seize suspects and then throw away the keys without even considering a trial, presumably because Jack Bauer just knows they?re guilty. We endured years of George Bush’s admonishments that these measures were for our own good, and the mentality has not faded. When Kennedy joins the far Right in attenuating the rights of the most vulnerable subjects of the criminal justice system, he doesn’t just follow his meandering judicial philosophy far away from precedent, he feeds an increasing and widespread dismissal of the rights of suspects over the privileges of their accusers.

This is particularly worth worrying about in light of Elena Kagan’s nomination to the court. As Solicitor General, Kagan chose to file an amicus brief in Berghuis v. Thompkins that is startling in its support for the police conduct in that case. Law professor Charles Weisselberg argues that

Kagan’s brief was even more aggressive than Michigan’s. In a 1994 case, Davis v. United States, the justices ruled that if a suspect first waives his rights and then later wants a lawyer, the person has to invoke that right clearly in order to require officers to stop questioning. Kagan’s position — accepted by the majority in Thompkins — was that Davis should be extended to the right to remain silent and to cases where a person has not already waived his or her rights. By contrast, the State of Michigan sought to win on a narrower ground.

In this respect, “Kagan’s brief shows no understanding of modern police interrogation tactics or that suspects — who are in a position of powerlessness during an interrogation — may have difficulty asserting their rights or using precise language to do so.” This seeming inability to recognize the difficult position of the person under investigation, a difficulty that prompted the Miranda rules in the first place, is an ominous sign for Obama’s second appointment to the Supreme Court. Let’s hope that during the sham that is the modern judicial appointment hearing, someone takes the time to ask Kagan about the rights of the suspect.