In the continuing story of why the Supreme Court has been an obstacle the vigorous enforcement of the war on terrorism, the optimist in me (a la Peter Robinson channeling Ronald Reagan) hopes that the Justices might at least modify the Miranda warnings. In this piece in this morning's Wall Street Journal, I take up Berghuis v. Thompkins, the Court's recent decision that found that long silence after receiving Miranda warnings does not amount to invoking the right to remain silent. Instead, the Court said that a suspect has to affirmatively signal that he wants to invoke his constitutional rights.
What was most important, in my view, was that the Court brought up the government's interest in prosecuting criminal activity and the burden on police as against the marginal benefits of the opposite rule. This is in great contrast to the last significant Miranda decision in 2000, where the Court rejected an effort by Congress to replace Miranda entirely -- a stunning declaration of judicial supremacy in interpreting the Constitution, by the way. While that 2000 case shows that the Obama Administration's proposal to expand the "public safety" exception to Miranda is an utterly hollow symbol, my hope is that this newfound willingness on the part of the Court may save the administration anyway. This is making the best of a bad policy, of course, because al Qaeda agents should not have any Miranda rights as enemy combatants in the first place. But as this administration is determined to treat them as criminal suspects, with the same rights as garden variety criminals, at the very least we can hope that the Supreme Court will give the government the flexibility within the criminal justice system.
Call it a Supreme Court bailout of Obama.