At the Supreme Court, Divisions and Signs of Trouble to Come

Two new rules for criminal cases, and a discussion -- in code -- about Roe v. Wade


The United States Supreme Court decided two criminal law cases Monday morning that have very little in common, except that they both further define the contours of what jurors get to hear during the course of a criminal trial. In both cases, on issues of guilt and innocence and sentencing, the justices decided that jurors could be trusted to hear more, not less, about the evidence presented to them by lawyers and witnesses. You can decide for yourself whether these are good developments or bad ones. Whatever they are, and whatever they mean, they surely highlighted anew the Court's ideological divide.

In Salinas v. Texas, the justices gave prosecutors a gift by upholding the murder conviction of a man whose silence during questioning was subsequently at trial used to help convince jurors of his guilt. What the decision really means is that to invoke your right to remain silent you have to initially speak up. Meanwhile, in Alleyene v. United States, the justices gave criminal defendants a gift by requiring prosecutors to prove to a jury not just facts that establish guilt but those that help determine a suspect's sentence. What that decision really means is that jurors will have slightly more power than they did before to determine a defendant's fate.

Salinas v. Texas

From the Court's plurality opinion, authored by Justice Samuel Alito, here's what happened:

On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.

Petitioner's interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. For most of the interview, petitioner answered the officer's questions. But when asked whether his shotgun "would match the shells recovered at the scene of the murder," petitioner declined to answer. Instead, petitioner "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." After a few moments of silence, the officer asked additional questions, which petitioner answered [citations omitted by me].

At trial, over the defense attorney's objection, prosecutors used Salinas' silence during this interview against him. He was promptly convicted. For the Court's majority, the matter was relatively simple. "We have before us no allegation that petitioner's failure to assert" his privilege against self-incrimination "was involuntary," Justice Alito wrote, "and it would have been a simple matter for him to say that he was not answering the officer's question on Fifth Amendment grounds. Because he failed to do so, the prosecution's use of his noncustodial silence did not violate the Fifth Amendment."

You may decide for yourself how "simple" it might be for a murder suspect in Texas named Genevevo Salinas to pipe up and volunteer in the face of a police interrogation that he wanted to exercise his constitutional rights. But to Justices Clarence Thomas and Antonin Scalia, the case was even more simple than Justice Alito made it out to be. In a concurring opinion, they declared that Salinas would have been out of luck even if he had invoked his Fifth Amendment privilege to remain silent, because the "adverse inference" employed by prosecutors does not trigger a defendant's obligation to testify against himself.

While the Court's five conservatives differed on how to deprive Salinas of his constitutional rights, the Court's four liberal justices spoke with one voice. To Justice Stephen Breyer, the exchange between Salinas and the police was not a friendly chat. "The context was that of a criminal investigation," he wrote. "Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question -- about whether the shotgun from Salinas' home would incriminate him -- amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder."

In these circumstances, the dissenters concluded, it was manifestly unconstitutional to allow prosecutors at trial to inform jurors that Salinas has failed or refused to answer that single question. Justice Breyer wrote:

To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances -- even if he is innocent. If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt.

And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as "a witness against himself " -- very much what the Fifth Amendment forbids.

Good news for jurors. Bad news for defendants. The lesson of Salinas is clear, and tracks a trend from this Court. Attributed to criminal suspects is a level of constitutional awareness few of them have. To conclude it was reasonable for Salinas to have stopped the interrogation, and explicitly invoke his Fifth Amendment rights under Miranda v. Arizona, is a fantasy in which the justices, conveniently, indulge. The real world, the world in which the police and suspects are at odds, cries out for clear judicial standards that presume the opposite -- that the Constitution works best when it protects those who need it most.

Alleyene v. United States

Compared to the Alleyene opinion, the Salinas decision was like a mash note. The only thing simple about the result in Alleyene was the holding itself. "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt," wrote Justice Thomas in an opinion joined by the Court's four liberal justices. Because Allen Alleyene had been given a seven-year sentence based upon the fact that he had "brandished" a weapon, a finding his jury did not make, the Supreme Court ordered him to get a new sentencing trial.

To reach this conclusion, however, the Court's majority had to overturn its 2002 decision in a case styled Harris v. United States and here's where the justices splintered apart. On the merits, there was the primary conflict between Justice Thomas and Chief Justice John Roberts over the role of judges, and jurors, in sentencing. For the majority, Justice Thomas wrote:

As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Wrong, wrote the Chief Justice. The Sixth Amendment was designed to protect defendants from the government, not to protect judges from legislators. "The question here is about the power of judges, not juries. Under the rule in place today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight -- so long as the sentence remained within the range authorized by the jury. Now," the Chief Justice wrote:

in the name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance.

There was little "respectful distance" between two other justices in Alleyene. Long after folks forget about this case and this ruling and the role of juries in criminal sentencing procedure they may remember the extraordinary exchange between Justice Alito and Justice Sonia Sotomayor over a case (Roe v. Wade) and a topic (abortion rights) that have nothing to do with the Sixth Amendment. The two justices scrapped over the concept of stare decisis -- the doctrine which posits that the Court should overturn its own precedent only in exceptional circumstances.

In a snarky dissent, Justice Alito issued a warning to the Court about creating a "precedent about precedent that may have greater precedential effect than the dubious decision on which it relies." The Court ought to be consistent in its willingness to reconsider precedent," Justice Alito wrote. "If [Harris] can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases." He might as well have written Roe v. Wade in the margins of his text.

This in turn was too much for Justice Sotomayor. In a concurrence, she forcefully made the case for respecting Roe v. Wade precedent even as she was voting to overturn it. She wrote:

We generally adhere to our prior decisions, even if we question their soundness, because doing so "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." To protect these important values, we require a "special justification" when departing from precedent.

A special justification is present here. As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. And any reliance interest that the Federal Government and state governments might have is particularly minimal here because prosecutors are perfectly able to "charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury."

And that's how a case about brandishing a weapon became a case about precedent, offering us a sense of how closely to the surface lies the Court's concerns about abortion rights. Monday was a day when the justices issued none of the big rulings (on voting rights, same-sex marriage, and affirmative action) we all have been waiting for. But the Court showed us anyway how divided it can be. It ought to be a remarkable -- and remarkably divisive -- next ten days in the history of the Roberts Court. You won't need to be a trial juror to see additional proof of that.