Roberts Court Thumbs Its Nose At Precedent Yet Again

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:

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.