During his confirmation hearing, Chief Justice Roberts famously promised “to have the humility to recognize that [judges] operate within a system of precedent” and to accept his own “modest role” within this system.  Then he got confirmed.  The result has been a string of cases thumbing their nose at precedent, and today’s decision in Berghuis v. Thompkins is no different.

Thompkins involved a criminal defendant who was read his Miranda rights, and then sat unresponsively through two hours and forty-five minutes of interogation before confessing to his involvement in a shooting.  Today’s 5-4 decision effectively holds that such defendants waive their right to remain silent unless they expressly invoke it–a decision that it all well and good, except that it unambiguously conflicts with the Miranda decision itself:

An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But 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.

Indeed, as Justice Sotomayor notes in dissent, the Court in Miranda considered nearly identical facts to those presented by the Thompkins case, but it reached the opposite conclusion:

[T]he fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.

In Sotomayor’s words, “[r]arely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case.”

Thompkins joins a long line of Roberts Court decisions that replaced well-established precedents with conservative ideology.  These cases include:

• Citizens United v. FEC: overruling a twenty-year old precedent to allow wealthy corporations to spend unlimited money to influence elections.
• Gonzales v. Carhardt:  striking down a federal abortion ban despite a Supreme Court decision upholding an identical law just seven years earlier.
• Ledbetter v. Goodyear Tire and Rubber: holding many women powerless to challenge pay discrimination despite a unanimous 1986 precedent to the contrary.
• Leegin Creative Leather Prods, Inc. v. PSKS, Inc.: uprooting a 96 year-old antitrust decision banning price-fixing.
• Parents Involved in Community Schools v. Seattle School District #1: audaciously claiming that the cherished Brown v. Board of Education decision forbids two local school boards’ plans to racially integrate public schools.
• Gross v. FBL Financial Services: not only stripping many older workers of their ability to challenge age discrimination, but also expressly stating that the Roberts Court is not bound by a prior decision its new members disagree with.

So today’s decision is a disappointment, but it is also part of a pattern.  Apparently, Roberts is no longer required to show humility now that he’s been confirmed.

The effort to repeal the Don’t Ask, Don’t Tell (DADT) law cleared two major hurdles in Congress last week, but the battle to end the policy is far from over. The Defense Authorization Bill — which passed the House and the Senate Armed Services Committee last week — still faces an uphill battle in the Senate, where the Republicans have threatened to filibuster the bill over the DADT provision and Senate Majority Leader Harry Reid (D-NV) is reluctant to move the bill before the August recess. Citing other priorities, Reid has promised to bring the measure to the floor “later.” “I can’t give you a definite time,” he told reporters.

Even if Congress acts, the policy wouldn’t be repealed until the military reverses its own regulations. As Senate Armed Services Committee Chairman Carl Levin (D-MI) explained on Friday, “the fact that even if we did get the certification [of the Defense Department review] — which I hope we do and expect we will — and even if we then say ‘ok, you’ve met that test and now it’s in your hands.’ It still requires action by the military to act on their own regulations, their own prohibitions. So it’s two steps, it’s two hurdles.”

Over the Memorial Day weekend, those military leaders seemed reluctant to move quickly on changing the policy:

JOINT CHIEF OF STAFF CHAIRMAN MIKE MULLEN: I still think, and so does the Secretary of Defense, it is really critical to understand the points of view of those it will affect the most as we look at the implementation challenges should the law change. Ideally, I would certainly have preferred that legislation not be brought forward in terms of the change until we are completed with that review. [STATE OF THE UNION, 5/30/2010]

SEC. OF DEFENSE ROBERT GATES: [T]he legislation involved is a deferred repeal. In other words, it would repeal “Don’t Ask Don’t Tell” but only AFTER, I repeat AFTER, the ongoing Department of Defense high level review is completed and only after the President, the Chairman of the Joint Chiefs and I all can certify that we are ready to make this change without hurting unit cohesion, military readiness, military effectiveness and recruiting and retention…. We need to hear from you — and your families — so that we can make these judgments in the most informed and effective manner. So please let us know how to do this right. [STATEMENT, 5/28/2010]

SEC. OF ARMY MCHUGH/CHIEF OF STAFF CASEY: We know many of you were disappointed in the House of Representatives and Senate Armed Services Committee votes on the repeal of “Don’t Ask, Don’t Tell. Understandably, such an action taken before the men and women of the Armed Forces were consulted could be seen as a reversal of our commitment to hear the views of our Soldiers and Families before the law was repealed. It should not be. [LETTER, 5/29/2010]

COLIN POWELL: It’s been reviewed, and I have always believed, and I’ve said this many times recently that you ultimately have to listen to the military authorities and what they think is good for the force and whether or not the force is prepared to handle this. …. But I think before we actually do it, we have to hear clearly from the officers and men and women who are in charge of executing that policy. It’s one thing to sit here in Washington, DC, and say, it’s no problem, do away with it. I think it’s important to listen to the troops who are affected and take into account the views of the senior leadership, military leadership of the armed forces. [THIS WEEK, 5/30/2010]

While it will certainly take some time to implement repeal — it took the military several years to desegregate the forces, even after Truman acted by executive order — the military’s instinct to maintain DADT, has little to do with military consideration. After all, since the experiences of other nations and the available literature suggests that repeal can and should occur swiftly to minimize disruption among the ranks, one would expect the military to emulate successful models and act to implement the change in the law. Instead, the military is slowing down implementation because it’s assuming two things: 1) openly gay members will somehow disrupt or undermine military cohesion, and 2) soldiers and their families will object to serving alongside openly gay members.

Repeal advocates seem convinced that military leaders want to end the policy, but not before they do a study triggered by their own biases.