0:00:00.1 S?: We will hear argument this morning in case 21-4999, Vega v. Tekoh.

[music]

0:00:10.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Vega v. Tekoh. In this case, which was decided earlier this year, a man was interrogated by the police without being read his Miranda rights.

0:00:28.7 S?: You have the right to remain silent. Anything you say maybe used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you at no cost.

0:00:38.9 Leon: It's generally understood the police must read you your rights before an arrest, so that you're aware of your Fifth Amendment right to not incriminate yourself. That didn't happen in this case, so the defendant sued the police for damages, but the Court ruled against him, saying that a constitutional right wasn't violated. It's another win in the long-running campaign by the Court's conservative wing to make life easier for cops and harder for everyone else.

0:01:01.1 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:09.7 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ravaged our nation like long covid is ravaging my lungs. I'm Peter. I'm here with Michael...

0:01:21.0 Michael: Hey, everybody.

0:01:22.2 Peter: And Rhiannon.

0:01:23.9 Rhiannon: Hi, hello. Everybody's struggling, I think.

0:01:28.1 Peter: We're back after a summer hiatus, during which both Michael and I just got sick and Rhiannon had her luggage taken...

0:01:37.2 Rhiannon: Yeah, that's right.

0:01:38.0 Peter: At least temporarily by incompetent baggage handlers.

0:01:41.4 Rhiannon: Another crisis that we have to talk about is that I got terrible lash extensions.

0:01:47.5 Peter: Is that what I'm looking at right now?

0:01:49.4 Rhiannon: Oppressive... Shut the fuck up. I will beat your ass.

0:01:56.6 Michael: You're going to hear a lot of laughing and then coughing in this episode too. Just prepare yourselves.

0:02:01.8 Rhiannon: Yeah, yeah, I think the coughing... Michael's coughing will probably be edited out. However, you should listen, or you should just know that the reality is that Michael has a hacking cough.

0:02:17.4 Peter: Leave that one in. Yeah, I got covid a few weeks ago, and I only have two lingering side effects. One is a little bit of a cough, and the other is that two to three hours after I wake up every single day, I'm tired again, no matter how much sleep I just got. The great news is that this has actually regularized my sleep schedule, because I've been going to bed at a normal hour now. I'm sleeping like a normal person, it's kind of... I don't mean to say that it's a blessing, 'cause it will probably take five years off my life, but there's been a silver lining, let's put it that way.

0:02:48.7 Rhiannon: That's great.

0:02:50.8 Peter: Alright, we're back after a hiatus that was either three weeks or four weeks, depending on whether or not you're a Premium subscriber, and today's case is Vega v. Tekoh. This is a case about Miranda rights, and specifically it's about whether you can sue for damages if your Miranda rights are violated. As you probably know, there is a 1966 case called Miranda v. Arizona, where the Supreme Court held that the statements of people in police custody cannot be used as evidence unless those people have been informed of certain constitutional rights, namely the right to remain silent and to consult with an attorney, hence every police officer and in every movie and TV show since then informing suspects of those rights upon arrest. And so the question in this case is whether if the police do not inform you of your so-called Miranda rights, you can sue them for damages for violating your constitutional rights.

0:03:52.0 Peter: And the Supreme Court, in a 6-3 decision written by Sam Alito, says, no, you can't, because Miranda rights aren't really constitutional rights. So Rhi, take it away, the background.

0:04:09.0 Rhiannon: Yeah, yeah. You know, there isn't a really long story here, I think most of what this case brings up is more about the long-term viability of Miranda, yikes, which we will get into. But just to give a little bit of background, this case started back in 2014, when a Los Angeles county sheriff deputy named Carlos Vega was investigating an alleged sexual assault committed by Terence Tekoh. So Vega went in to interrogate Tekoh at Tekoh's work and Vega, the officer, did not give Tekoh any Miranda warning before starting the interrogation.

0:04:47.5 Rhiannon: During the interrogation, Tekoh did give a confession that was then used against him at trial. He had a couple of trials, actually, the first trial ended in mistrial based on other grounds that aren't relevant here, and then finally in his trial that actually led to a jury verdict, the jury actually found him not guilty, he was acquitted. But Tekoh said his confession was coerced and he was never given his Miranda rights, so he sues for money damages under the Civil Rights statute, which is known as Section 1983, and that statute, of course, provides that for constitutional violations, individuals can sue for damages. So that's basically what happened. Those are the kind of low level, on the ground facts that bring this case up to the Supreme Court.

0:05:36.5 Peter: Right. So let's talk about the law a little bit. And before we get into the opinion, it's important to really understand Miranda v. Arizona. You have these constitutional rights, the right to an attorney in the Sixth Amendment, the right against self-incrimination, known as the right to remain silent, in the Fifth Amendment. So what the court held in Miranda was essentially that for those rights to have any practical meaning and effect, suspects in police custody need to be informed of those rights, and a valid interrogation can proceed only after they've waived the rights or exercised them.

0:06:14.1 Peter: What's a bit unique about this rule is that it's prophylactic, meaning it's preventative, it's sort of proactively protecting the person's rights. The Constitution doesn't say you have to have your rights read to you, it just says that you have the right to an attorney and the right against self-incrimination, but the Court held that it's required for your rights to be read to you in order to reduce the risk that your rights are violated. It creates that proactive or prophylactic, which is the word we'll be using quite a bit, obligation on the part of the police, and that's a crucial point to remember here.

0:06:51.8 Rhiannon: Yeah, exactly.

0:06:51.8 Michael: Yeah. And you know, Miranda is such a well-known decision, it's sort of, I think, hard to understand for people today that it was pretty controversial at the time, that it up-ended a lot of law enforcement practice, it generated a lot of reaction. Because before that, basically, everything was done on a case-by case basis. If you felt like you had made an incriminating statement to a police officer, you had to prove that it was essentially coerced based on the totality of the circumstances, this like fact-heavy inquiry. And the Court, they did something I think pretty remarkable, which was say, like, the important thing is that people need to understand that they're in the adversarial system now. That's what Miranda's about, putting a big fucking neon light right in front of your face that says, "Hey, this system is here to grind you into bits right now. The people you're talking to are gonna try to grind you into bits right now. Anything you say they're gonna use to grind you into bits. You have the right to expert help to prevent that." And it puts people on a little bit of a more level playing field, and law enforcement reacted very poorly to that, politicians reacted very poorly to that.

0:08:16.3 Michael: The US Congress pass a law saying that Miranda is wrong and that federal cops, the FBI and whatnot, don't have to Mirandize people, and that the totality of the circumstances, coercion tests that existed prior to that, is what governed the admissibility of incriminating statements in federal courts. And as I think we'll talk about later in the episode, there have been just a history of inventive police practices in the decades since on ways to get around Miranda, even when they sort of concede that Miranda is in charge. So this is not something like Roe v. Wade where the resistance to it has been so very public, but it has been persistent since it came down, and organized, and as definitely part of the conservative long-term project is weakening Miranda. And so I think we should see this case in that light.

0:09:16.2 Peter: Yeah, we mentioned it before, but there's nothing more offensive to police than requiring that they read, especially reading your rights. Rachel's gonna spend an hour tracking in laughter from old episodes for Michael. So, there's this question of what happens when your Miranda rights are violated, when the cops don't read you your rights. One thing that happens, really the primary thing that happens, is that the police cannot use the testimony they get against you. It's excluded from evidence under what's called the Exclusionary Rule.

0:09:54.9 Peter: The question in this case is separate. The question here is whether you can also sue the government for damages. There's a law we've discussed before and that Rhi mentioned Section 1983, which allows people to sue the state when their constitutional rights are violated. So very simply, can you sue the state when the cops don't read you your Miranda rights? And Sam Alito says No. And the reasoning he gives, is essentially that Miranda rights are not real constitutional rights. He says, "Look, Section 1983 is a law that allows you to sue when your constitutional rights are violated. But Miranda rights aren't constitutional rights. They're not explicit in the Constitution, they're a prophylactic rule meant to protect your constitutional rights."

0:10:49.3 Rhiannon: Whoa! 3D chess in the brain.

0:10:54.5 Peter: There's a lot of logic going on here.

0:10:54.8 Rhiannon: So much logic, yeah.

0:10:57.1 Peter: So, the holding here is predicated on this very fuzzy idea that there's a meaningful difference between violating a right and violating a rule designed to protect that right. Again, the right is, just for example, your constitutional right to an attorney. The rule is that the police need to inform you of that right if you're in custody. So, we've talked before about what exactly a right is, because I think there's a pretty meaningful difference between how the conservatives view a right and how legal realists view it. I don't want to get too far into the theory, but we usually talk about this in the context of remedies, basically saying that if there's no remedy for when a right is violated, then it essentially means that you don't really have that right.

0:11:45.4 Peter: If I say that you have a right to be free from assault, but then I assault you and there's no laws making assault illegal, then you don't really have that right, not in any meaningful sense. This is the same basic concept, instead of talking about remedies after a right is violated, this is about preventative measures to avoid a right being violated to begin with. So Alito is saying that the rule that protects the right is not the same thing as the right itself.

0:12:15.4 Peter: But like, isn't it? Because without protections for the right, do you actually have the right? Aren't we sort of drawing some very thin lines here if we start trying to distinguish? Alito doesn't really get into the complex theory of rights, he just sort of says this. He's like, "Well, you got your rules and you got your rights. And that's it."

0:12:35.0 Rhiannon: Yeah, the entire opinion is sort of based on an argument of semantics. He says, "Miranda itself and our subsequent cases make clear that Miranda imposed a set of prophylactic rules. Those rules, to be sure, are constitutionally-based, but they are prophylactic rules nonetheless." Okay? Like is there a ideals of the Supreme Court book that prophylactic means not a constitutional right, like he's just labeling it prophylactic and saying that means it's not a constitutional right. It's absolutely semantic.

0:13:13.4 Peter: Yeah. It just feels like there's something missing in his reasoning, where he's just going on and on about how this is a rule, and we've said that it's a prophylactic rule and that's sort of distinct from the right, but he never actually explains in any meaningful detail why that would be the case, or why you can interfere with the rules that protect rights, and how if you can interfere with rules that protect writes, you can still maintain the right in any substantive sense. Doesn't get into any of that. So the immediate impact here is that you cannot get damages when your Miranda rights are violated.

0:13:49.4 Peter: But maybe the most obvious and concerning implication is simply that if you're treating Miranda rights as completely distinct from the constitutional rights that they protect, you're not too far from just saying that Miranda rights aren't required by the Constitution at all. If you've already determined that Miranda violations aren't constitutional violations, then it makes sense to say that not only can you not sue for damages, but there shouldn't be any penalty from Miranda violations, period. Why should there be a penalty for something that doesn't technically violate the Constitution at all, right?

0:14:25.8 Peter: That's the sort of slippery slope that Alito is creating here. And in case that implication wasn't clear enough, Alito says in a footnote that there's a question of whether the Court has the authority to make prophylactic rules at all, which is implying not only that he's thinking about overturning Miranda in full, but that he's open to overturning a host of long-standing constitutional protections on the basis that they are "prophylactic" and therefore not actually required by the Constitution.

0:15:00.9 Peter: He cites several academic articles on this point, one of which suggested the overturning of Mapp v. Ohio, the case that created the Exclusionary Rule, which again is the rule that says that unconstitutionally acquired evidence can't be used at trial. To undo that case would basically completely up-end criminal law and essentially make the Fourth Amendment a nullity. I mean, I don't think that's overstating it.

0:15:25.1 Rhiannon: No, I don't think so at all. Playing out that hypothetical at the Supreme Court is pretty scary, like Mapp v. Ohio has to do with the Fourth Amendment, not the Fifth. It's a case that establishes, like Peter said, a foundational rule in criminal law, which is that if evidence is gathered against you in violation of your Fourth Amendment rights, that evidence cannot be used against you in the prosecution of that crime, right. If your house is searched and the cops didn't have a warrant, they can't use whatever they found in the house to establish that you committed a crime. If you're searched without probable cause, the cops cannot use the drugs in your pocket to show you had drugs in your pocket, it would have to be some other evidence, or your case gets thrown out.

0:16:08.0 Rhiannon: This is very, very basic criminal law. I would say that most litigation in criminal law outside of trial is about exclusion of evidence based on the bad and unconstitutional behavior of cops, and the point of the Exclusionary Rule is to basically punish the state for that bad behavior, to discourage unconstitutional behavior. If you violate someone's constitutional rights to get evidence, you can't use that evidence, like simple as. But it is also, the Exclusionary Rule is also a prophylactic rule. It's not in the Constitution, the Court came up with it, and if Alito is on this crazy wavelength where prophylactic rules don't mean anything and may even be open to being overturned, that's super concerning.

0:16:57.6 Rhiannon: He makes a point elsewhere in the opinion too that giving a 1983 cause of action for Miranda violations would create a mess of 1983 litigation, but he's certainly not contending with the mess of criminal law created by doing away with some of these bedrock constitutional principles that, yeah, are prophylactic rules.

0:17:20.9 Peter: Right. Also, it's got to be the worst kind of argument, which is just like, Well, if we held this way, that would be a big pain in the ass, don't you think?

0:17:27.6 Rhiannon: Yeah, yeah, exactly. It's this too much justice thing, right?

0:17:30.7 Peter: Yeah, a big part of this is that Sam Alito would love to feast on the fruit of the poisonous tree, and he's like, Why can't we? Why can't we eat from the poisonous tree?

0:17:41.4 Michael: It look delicious.

0:17:42.8 Rhiannon: Yeah, exactly. Sam Alito is Eve in the Bible.

0:17:49.1 Michael: Gimme that.

0:17:52.5 Peter: So the suggestion by Alito that maybe the Court cannot create prophylactic rules, just completely bad faith sophistry. The Court creates prophylactic rules all the time, and again, prophylactic just means preventative or proactive. To use the example of NYSRPA v. Bruen, which we just covered a few weeks back, and where Alito was in the majority, in that case, the Court struck down New York's gun licensure regime. And the Court noted that the law didn't necessarily violate the Second Amendment, but might in some circumstances, depending on how it was applied. But the Court struck down the law. Even though the law wouldn't necessarily violate the Constitution, the Court struck it down as a preventative measure. In other words, like the rule that the Court handed down in Bruen was prophylactic. In Miranda, the Court said that states need to read people their rights in order to prevent potential violations; in Bruen, the Court says states cannot have certain types of gun laws in order to prevent constitutional violations.

0:19:00.9 Peter: It's the same basic concept. I'm only using this as an example because the case came down on literally the same day as Vega v. Tekoh.

0:19:10.9 Rhiannon: Gorgeous. Gorgeous.

0:19:11.0 Peter: There are countless other examples, right, like courts strike down laws based on the First Amendment right to free speech, not because the laws directly violate free speech, but because they might chill speech, right, they mean they might in some context dissuade speech from happening. That's prophylactic too, right? Alito is just drawing a distinction here that doesn't really exist, probably because what he actually wants to say is that the Court is from here on out forbidden from endorsing liberal bullshit, and Miranda's liberal bullshit. That's what he really wants to say.

0:19:43.2 Michael: And I think that's a good point to talk about the dissent, which was some weak shit, I think, from Kagan. It's very short, and it makes one point very sharply, which is like Alito's whole thing is, look, Miranda is not the Fifth Amendment. If a violation of Miranda was a violation of the Fifth Amendment, then yes, you could sue under Section 1983. And Kagan's whole point is, Well, that's not the question, right. Section 1983 says any rights, privileges or immunities secured by the Constitution and laws can create a cause of action. And so Miranda is that, right? Miranda is secured by the Constitution, everybody agrees with that, even Alito, and it's a right.

0:20:32.0 Michael: If you don't get your Miranda rights read, then your testimony is going to be inadmissible and if you do, it's practically always admissible. That sounds very much like a right. An on and off switch, the government has to do X in order to do Y, it's an obligation you have against the government. That is a right, that is by any definition a right. It might not be the Fifth Amendment right, it might be a right designed to protect some deeper, more important fundamental right, foundational right, but it's still a right secured by the Constitution, and therefore a right that you can sue for damages for under Section 1983.

0:21:13.2 Michael: And I think that's right, but I also think it's so inadequate to this, right? Obviously, I am a bit of a Miranda partisan, I talk about it on the pod, I'm sure I've mentioned it many times. It's probably my favorite decision, it's certainly one of them, and I think it's a great example of the virtues of judicial activism when it is paired with pragmatism and real values.

0:21:41.1 Rhiannon: Yeah, and a realistic understanding of the relationship between law enforcement and individuals.

0:21:45.6 Michael: Yeah, exactly. An understanding of how coercive these environments are, how skilled cops are at eliciting incriminating statements, which they are very good at, they're very good at. But so Miranda is just such easy terrain for the liberals, right? Here is a case that everybody knows, here's a case that is well-liked by the public at large, well-known, well-liked, well-appreciated, and you should be fucking screaming from the rooftops about how great it is and how the Court should be respecting it and, if anything, expanding on it, and making sure those protections are iron-clad, not a fucking four-page little like... I don't think you're really thinking about what a right secured by the Constitution is, you haven't really given us the analytical clarity it deserves, Mr. Alito.

0:22:44.6 Michael: Like what the fuck are we doing here? What are we talking about? This is where you need an ambitious alternate vision of the Constitution, where somebody should be just writing a love letter to Miranda and all the ways in which it's been weakened that it shouldn't have been, and how this is just another example in this long line of weakenings and how these footnotes should be raising alarms that the conservatives are going to be weakening it even more, right? It's shameful, it is. It's a shameful missed opportunity, and if you're in the three Justice minority right now, you don't have a lot of power in cases like this, so what the fuck are you doing with the little power you do have? What is this?

0:23:29.7 Peter: She's spent an inordinate amount of time just like dicking around about the relevant precedent and fighting with Alito over the meaning of Dickerson, this case from 20 years ago or so that's highly relevant here, and it's just like, Can you understand the stakes and sort of meet the moment a little bit more? Is it really that we are sort of stuck with Kagan, who on issues like this, can only think in these really narrow doctrinal terms? It's sort of a bar because she's capable of doing more, you see it in voting rights cases, for example. She has her moments where she can sort of rise to the situation and make a real point, which makes it even more depressing when she's just farting out these little weak dissents in a case like this.

0:24:17.7 Rhiannon: Right. The missed opportunity in not explaining in this sort of full-throated, almost like offensive way, the importance of Miranda, right, because the point that I really wanted to make is that I think we should be talking about Miranda as a floor, not a ceiling. Miranda was a radical new conception in the law about the relationship of law enforcement to individuals, what law enforcement's responsibility is to individuals. But now, like Michael said, conservatives have spent a couple, a few generations trying to strip this back, and police know how to skirt Miranda while still technically doing everything correctly by reading the Miranda script, right. And they literally have a script sometimes, like many police departments have their officers like carry a card that has the Miranda warnings on it, and so they can just pull it out of their pocket and read it.

0:25:14.9 Rhiannon: And the Miranda warning on its own, like let's be real, is nonsensical. It doesn't make sense to the average person. It feels very much, purposefully, from the perspective of law enforcement, it feels very much like a form that needs to be filled out before you can talk to the person who you actually need to talk to, it's almost like you're waiting in the waiting room at the doctor's office, right. It's we just need to get some stuff out of the way and have you initial next to these statements, instead of something like, if we talk, we will be asking questions as part of our investigation into whether or not you committed a crime. Whatever you say, including your confession if you give one will be used as evidence that you should be charged and prosecuted for this. You do not have to speak to us and create this evidence against you, you have the right to a lawyer who will represent your interests, and you can ask your lawyer first if you should proceed with this kind of conversation.

0:26:08.7 Rhiannon: That is not how police give Miranda warnings, not at all. So a Supreme Court that was concerned with people's constitutional rights, concerned with the militarization of police power over communities, concerned with the state's monopoly on violence, that Supreme Court would not have allowed this to take place, and certainly wouldn't be entertaining these arguments today that render Miranda even more hollowed out, right, saying that you don't have this remedy in Section 1983. Miranda should have been the floor, a foundation on which to say the police have serious obligations to people, and they have to comply with rules that make sure they do not violate people's rights, like we don't have to comply to the police's rules, they need to comply to ours.

0:26:51.5 Rhiannon: And a world without Miranda at all just continues to erode any semblance of power and accountability you're supposed to have with the police. Without Miranda, you're basically, the Supreme Court is greasing the wheels. Police wouldn't even have to go through the formality of the scripted warning, right. Just a quick like, Oh, by the way, here are your rights before you engage in a discussion with armed agents of the state. They wouldn't even have to do that if Miranda eventually is overturned, and I think that should be really, really alarming.

0:27:27.4 Michael: This feels like a good time to take a break.

0:27:30.6 Michael: And we're back.

0:27:31.8 Peter: I think there's something so dark about how for 50 years, cops have been fighting the idea that they have to be like, By the way, you can get an attorney now. We gotta tell them that he can get an attorney? That's all? That's what they've been fighting tooth and nail against? It's ridiculous.

0:27:53.0 Michael: And they had... I mean, it's not hyperbole, what Rhi was saying, some examples of ways cops try to get around Miranda, just in the recent past, within the last 15 years, there was a case called Missouri v. Seibert that was at the Supreme Court where Missouri, what they do is, would just pretend like Miranda didn't exist and interrogate people without giving them a chance to get an attorney, incommunicado, custodial detention, all their tactics of coercion, for hours, six hours, eight hours, ten hours or whatever, until they elicit incriminating statements. And they would take a five-minute break and then read the person their Miranda right and start over from scratch, and throw their statements in their face and be like, "So you don't wanna talk about this? You just told me that you set that fire and now you're gonna remain silent?"

0:28:43.4 Michael: And pretend like that was some sort of honoring of the Miranda warnings and the obligations and the rights that people have in those cases. That practice was disapproved by the Supreme Court, 5-4, with Justice Kennedy joining the libs back in 2004. Scalia, Rehnquist, Thomas and O'Connor all gave that practice the thumbs-up. I mean, is there any doubt where this current Court would come down in some similar work-around? In New York, in Queens County, I think. It was Queens or Kings, I think it was Queens County, up until a few years ago, they'd hold people in pre-arraignment jail for 15 hours, 20 hours, you don't get a lawyer until you show up before the judge to get arraigned.

0:29:30.1 Michael: And so they'd pull them out of their cell, maybe 15 minutes before, turn on a camcorder and be like, "Hey, you're about to go in front of a judge, this is your last chance to talk to us," and give them a list of anti-Miranda warnings. "If you wanna give us exculpatory evidence, now's the time." Like telling them to talk, telling them that if they exercise their right to an attorney, they'll be punished for that, you're not gonna get a chance to deal with us, or whatever. And then after giving this like anti-Miranda litany, it would be like, "Alright, and by the way, here are your Miranda warnings, and then do you wanna talk or do you wanna go in front of a judge, right now, like literally in ten minutes." And people would cave, and they would give incriminating statements.

0:30:09.4 Peter: They were also misrepresenting what exactly an arrangement was by implying that you might be in real trouble if you let this go forward.

0:30:17.6 Michael: You're going to court, yeah, right now.

0:30:19.4 Rhiannon: Oh, they say that all the time because the cops are allowed to lie to you, right? They say all the time, "We're really just trying to figure out what happened, and by talking to us, you're helping yourself, we can just clear some things up. Again, what you say will be used against you." So they are not presenting the Miranda warning in that way.

0:30:40.1 Michael: Right, they're literally like negating it. Actually, what you say could help you. And remaining silent could hurt you, so you should really consider talking to us.

0:30:48.5 Rhiannon: Exactly. Completely obfuscating the next steps in the process.

0:30:52.2 Michael: That was found unconstitutional by New York's highest court, their court of appeals. But again, I don't know how comfortable I would feel with this Supreme Court looking at a procedure like that, are you kidding me? Especially after this case, especially after their obvious attitude about prophylactic rules and its constitutional, but not really constitutional nature of Miranda. This is really what we're talking about here, are people who are annoyed even by these basic obligations that the government has to you.

0:31:22.4 Michael: And so just like in light of that, it is worth noting that when you look at convictions that have been overturned by physical evidence, DNA evidence, new technology and all that, a huge portion of them have self-incriminating statements, people who are factually innocent, who made self-incriminating statements, because cops even in the paradigm where they have to give you Miranda rights, even in the watered-down Miranda world we live in, cops are so good at getting people to talk and getting people to say incriminating things that they get factually innocent people to make self-incriminating statements on the record without a lawyer present, all the time. Like that is incontrovertible.

0:32:08.1 Rhiannon: Yeah, it happens all the time.

0:32:10.7 Michael: And conservatives want to make that easier for cops to do. That's what we're talking about here.

0:32:15.1 Peter: The idea that cops don't have enough leeway in these situations is so completely fucking detached from reality, that it's not even worth discussing. It just has absolutely no relation to what's happening on the ground. By the way, we will at some point cover the 2010 Supreme Court case where they held that in order to invoke your right to remain silent, you have to say it out loud, that actually remaining silent wasn't enough.

0:32:43.6 Michael: You can't just be silent.

0:32:45.5 Peter: One of the most absurd cases I've ever encountered... And the only reason we haven't done it yet is because I don't even know what else to say about it other than just like, are you fucking kidding me with this?

0:32:56.5 Rhiannon: Right, like how fucking stupid is this. Welcome to my world, y'all.

0:33:00.2 Peter: So it's not a right to remain silent, then, you dumb fuck.

0:33:04.9 Rhiannon: Exactly, exactly. Try explaining that to a client, right? They just look at you, like what the fuck?

0:33:10.9 Peter: Right. And circling back to this particular case and what it holds, which is that you can't get damages in these situations, important to realize how much leeway that gives cops who might just want to roll a dice, because if you're not risking damages, then the only thing you're really risking in these situations is that the evidence is not admissible at trial. There are situations where you're probably never going to get that evidence anyway, so if you take away the potential penalty of damages, cops might decide, Well, let's just roll the dice, violate the Miranda rights, and see if we can get something here 'cause we're not going to get it through any other means.

0:33:55.4 Peter: It just sort of creates a situation where the incentives for police are increasingly fucked up if someone can't get damages for violations of Miranda. And I keep circling back to that footnote, where Alito suggests that maybe we should do away with all of these so-called prophylactic rules in our jurisprudence. I mentioned earlier that that's bad faith bullshit, which it is, but when you're analyzing bad faith bullshit, it's important to drill down into what the person is actually trying to accomplish, which in this case, I think, is just the severe weakening of protections for criminal defendants under the Constitution. The Fourth, Fifth and Sixth Amendments, especially, rely on proactive courts and proactive government institutions to protect the rights that they contain.

0:34:45.0 Peter: Rights against unreasonable search and seizure, against self-incrimination, the right to an attorney. And Alito is advocating for a very dark vision of the Constitution, where those rights are in practice essentially unprotected. Without proactive rules, like Miranda and like the Exclusionary Rule, those rights don't really exist, they're just an idea. At most, you could sue for damages, but that's only if there is a law in place saying you can, like there happens to be here in Section 1983. The Constitution itself, according to Sam Alito, does not protect those rights in any way. They're just sort of there, it's just a statement of your rights with no meaning.

0:35:32.8 Peter: Not to mention that even if you can sue, so even if the Court says, Okay, yes, that's a constitutional right, and if you violate it, you can sue, you still have to work your way through the web of the various immunities that the Court has given to cops, prosecutors and judges, because apparently the Court can make up all sorts of rules to protect the agents of the state, but is not allowed to make up rules to protect normal citizens. And not to mention it's just a fucking perverted vision of the Court's power that the Court can strike down entire laws, but can't tell cops to read people their rights. What is that understanding of the Court's power? I truly don't get it.

0:36:16.4 Rhiannon: Yeah, it's stupid.

0:36:18.2 Peter: It's depressing, because I think a better view of the Court's role in enforcing the Constitution would be close to the opposite, wary of striking down laws, but aggressive in proactively protecting constitutional rights. That would be, I think, a more reasonable way to understand the Court's sort of position vis-a-vis the citizen. Sam Alito thinks it's completely the opposite, just the role of the Court is to strike down liberal laws and allow the agents of the state to run wild on your ass.

0:36:55.5 Michael: There was just something very precious about doing this episode this week, talking about like a Supreme Court like stripping defendants of these rights against self-incrimination and all that, and blah, blah, blah. And then it's like Trump judges being like, Well, Donald Trump gets a special master. If anybody ever wants to do anything, any sort of criminal investigation into, at all, there's a whole special procedure that he gets that nobody else gets.

0:37:23.4 Rhiannon: Yeah. Law for thee, not for me.

0:37:26.8 Michael: Completely different legal artifice that he exists in.

0:37:29.6 Peter: Well, he is the Court's very special boy.

0:37:31.2 Michael: That's literally it.

0:37:32.4 Peter: That's what the Court is holding.

0:37:34.2 Michael: Yeah, that's it. And if you read the opinion, it is, it's like his reputational damage is so important, and his status within the Republican party and politics is so important, that he is a special boy who gets special rules. It's pretty fucking...

0:37:47.4 Peter: It's been a very annoying week for having to explain to lay people what a special master is, 'cause it's one of those things where you're like, This is fucking bullshit, and then you have to explain various aspects of discovery rules before they can understand your anger. That's very annoying. Very annoying.

0:38:06.9 Michael: Yeah, it's like something that is totally opaque unless you are fully in the legal weeds, but then if you are in the legal weeds, it's like, Are you fucking kidding me? Are you for real? Like this is like... What planet are we on?

0:38:25.7 Rhiannon: Swear. Swear, dude, swear. Swear that this is real.

0:38:28.5 Michael: Unbelievable. Unbelievable.

0:38:32.3 Peter: That opinion is like... It's been a nice little reminder that while the Supreme Court has been relatively silent, conservatives are still just sort of running wild in the lower courts. You're never free of it, you know. What they've built is here to just drive you insane year-round, regardless of the Supreme Court calendar.

0:38:56.4 Peter: Next week, Minor v. Happersett, a case from the 1870s about whether women should be allowed to vote. I won't spoil it for you, but it doesn't go great.

0:39:13.8 Peter: Follow us on Twitter at fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod, all spelled out, for premium and ad-free episodes, special events, all sorts of little perks. We'll see you next week.

0:39:29.6 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our Production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.