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Elena Kagan and the Death of Miranda

Posted: 06/01/10 03:45 PM ET

On June 1, the U.S. Supreme Court finally dealt Miranda a death blow. Elena Kagan, Obama's nominee for the Supreme Court, was complicit in Miranda's demise. Her participation may give some insight into her views on the rights of criminal defendants, and her understanding of how the law affects ordinary people.

In Berghuis v. Thompkins, the decision announced today, the Court ruled 5-4 that a suspect has to speak in order to assert the right to remain silent. Van Chester Thompkins was given his Miranda warnings and remained quiet for almost 3 hours. During that time, officers continued the interrogation and Thompkins eventually made an admission. A federal court found that he had asserted his right to remain silent by actually remaining silent, and that officers should have ended the questioning. The Supreme Court reversed.

The majority said that if officers give Miranda warnings to a suspect, they may begin questioning and continue to question unless the person clearly and unambiguously says he wants to remain silent or wants a lawyer. Police do not have to expressly ask a suspect to waive their rights. If the person shows incredible stamina -- like Thompkins -- and manages to remain silent through hours of intense interrogation, he will have "waived" his rights if he eventually caves in to pressure.

And the Court has placed a substantial burden on suspects to invoke their rights with great precision. A number of lower courts applying the clear and unambiguous standard have been quite demanding, finding that statements such as "I think it's about time for me to stop talking" and "I think I would like to talk to a lawyer" are not clear invocations of the right to remain silent or the right to counsel.

The Court's opinion is the most important Miranda decision in a decade. The ruling is breathtaking even to those, like me, who believe that Miranda's safeguards were already eroded. The Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police. Miranda's safeguards for suspects are now mostly symbolic. So long as officers give warnings, their interrogation practices will be largely immune from any legal challenge. As the justices have noted in other cases, if warnings are given and a statement is obtained, it is very difficult for a defendant to contend that his admissions were coerced.

Justice Sotomayor wrote a strong dissent in Thompkins. Joined by retiring Justice John Paul Stevens and Justices Breyer and Ginsburg, she explained how the majority opinion rewrites Miranda.

So what was Kagan's role? As Solicitor General, she filed a brief in Berghuis v. Thompkins for the United States as amicus curiae (friend of the Court). The U.S. was not a party in the case since Thompkins had been convicted in state court and it was the State of Michigan that challenged the lower court's ruling. Kagan did not have to enter the fray and take a position, but she decided to do so.

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. We cannot know whether Kagan's arguments convinced the majority to issue such a broad decision. But the Solicitor General, often called the "Tenth Justice," is a very influential player.

What does this case tell us about a Supreme Court with Justice Kagan? Superficially, if Kagan had already replaced Stevens on the Court, the outcome would not have changed. At most, the decision would have been 6-3 and not 5-4. But Kagan's arguments may reveal something else, particularly when contrasted with Sotomayor's dissent.

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. Sotomayor, on the other hand, notes that "criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence." Her dissent reveals a solid understanding of how the decision will shape police practices. Of course, Sotomayor was a prosecutor and a trial judge. Kagan has no experience on the ground.

In nominating Elena Kagan to the Supreme Court, President Obama said that Kagan has an "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people..." Perhaps so. But that understanding was not evident in Kagan's work in Thompkins.