You Have the Right

Sorry for the lack of recent content, faithful readers. I was on vacation last week.

The Supreme Court ruled yesterday that a suspect given the Miranda warnings, particularly the warning, "you have the right to remain silent," must invoke that right in order for it to be effective. Answering questions after being given the warnings will be taken as a waiver of the right to remain silent, notwithstanding the statement in Miranda 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." It seems that an arrested suspect must say "I invoke my right to remain silent" -- and "invoke" has to be in italics, I'm guessing -- or the police can just keep questioning the suspect until he breaks down and says something incriminating.

Others have covered the susbstance of the decision, but here's a word about the procedure that may have escaped attention: the case arose in the context of a petition for habeas corpus. That is, direct appeal of the conviction was over, and the convicted prisoner then applied for habeas. In such cases, pursuant to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), relief is available only if the state court decision is not merely wrong, but unreasonably wrong, to the point where reasonable judges would all agree that the state court decision misapplies federal law. If the state court judgment is a close call, the federal court is supposed to deny habeas relief even if, in the federal court's best judgment, the state court got the case wrong.

Therefore, whatever one thinks of the Supreme Court's new understanding of how Miranda actually works, it seems pretty clearly unecessary for the Court to have announced its rule in a habeas case. The Court needed to say only that the state court decision was not an unreasonable application of Miranda, without deciding whether it was ultimately correct. That question could have been saved for another day.

Of course, the judges who complain most vociferously when courts allegedly "reach out" to decide questions unnecessarily, or at the behest of parties who supposedly lack standing, or who in some other way aren't presenting the question in a perfectly justiciable posture, are usually the very same ones who produced yesterday's opinion. In the landmark case of Teague v. Lane, for example, Justices Scalia and Kennedy (the other conservatives weren't on the Court yet) joined an opinion explaining that because new rules don't normally apply retroactively in habeas cases, courts asked to articulate a new rule can't even consider the question unless they first decide that the new rule would, exceptionally, apply retroactively, because otherwise they would be announcing an advisory opinion.

So, as usual, judges just can't make up their minds whether they want to be strict or loose in these procedural matters. If I were cynical, I'd say they like to be loose when that allows them to reach a result they favor, and strict when it allows them to avoid reaching a result they wouldn't like. Good thing I'm not cynical!