In the oral arguments in Vega v. Tekoh, the case the court just used to essentially nullify Miranda rights for suspects, Justice Elena Kagan could see what was coming. She warned her colleagues that denigrating Miranda “would have a kind of unsettling effect not only on people’s understanding of the criminal justice system, but on people’s understanding of the court itself and the legitimacy of the court and the way the court operates and the way the court sticks to what it says.”
She sounded that alarm bell in her dissent in Vega. The court has done it now, it has broken a fundamental precedent and with it a fundamental right.
Today, the Court strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda.The majority observes that defendants may still seek “the suppression at trial of statements obtained” in violation of Miranda’s procedures. ... But sometimes, such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? ...
The majority here, as elsewhere, injures the right by denying the remedy.
Kagan and her colleague Justice Sonia Sotomayor have been warning about the court’s lost legitimacy for months now, because the court has become increasingly dangerous and from where they sit, they know how much more damage can be done.
Their warnings have fallen on deaf ears within the court. The extremist majority—five of whom were appointed by a president who lost the popular vote—is drunk on the power they now have. They have only begun in their path to sending us back to the 19th century (or if Alito has his way, the 17th). Still to come this session are their abortion and Clean Air Act decisions. By the end of this month, pregnant people will have fewer rights than gun owners, and the Biden administration will no longer have the power to protect the air we breathe.
None of these decisions reflect the opinion of the majority of Americans. What the Trump and McConnell-packed court is hell bent on doing is far, far out of the mainstream, even among Republican voters.
And Republicans are making sure that there is going to be more of it, enshrined in law at every level.
The response from Democrats can’t simply be this, what we got from President Joe Biden on Thursday:
We have made our voices heard. Just this month, in more than 450 cities hundreds of thousands of us used our voices again. The Supreme Court did not hear that. The Supreme Court does not give a damn.
The answer is for the president and for the Congress to act like the coequal branches of government that they are, to use the tools that the Constitution bestows on them and check and balance the rogue Supreme Court.