It's sometimes hard to explain to students -- or even, on occasion, lawyers -- what precedential difference (if any) it makes that a Supreme Court opinion is a 5-4 rather than a 9-0. After all, the legal rule adopted by the majority constitutes binding precedent, right? The rule is the rule, and as long as it gets any number of votes greater than 4.5, it controls.
Yes. Entirely right. Only, maybe, not entirely.
The great thing about this case from the Ninth Circuit today is that I think it provides a very good example of what I mean -- or at least feel -- when I tell students that starkly split decisions are, as a factual matter, less precedentially powerful than others. Sure, everyone understands that a 5-4 might more easily be overruled by a future Court than a 9-0. That's intuitive. But how does that matter to a lower court, that's bound to follow Supreme Court precedent until it is in fact overturned?
Well, let's examine what happens here. Jose Rodriguez gets stopped by some federal rangers in Lake Mead because it seems like he's drunk. He's got some pistols and some other stuff, including a homemade silencer, that leads the rangers to read him his Miranda rights. After which they ask him whether he wanted to talk, an inquiry to which Rodriguez responds "I'm good for tonight."
Well, what exactly does that mean? Personally, I tend to think that means "I've got a nice buzz on, and don't feel like being busted, so leave me alone. I'm good." But I can easily see that it also might mean "I've got a nice buzz on, and am a happy-go-lucky sort of drunk, so go ahead and chat with me, I'm good." In legalese, we say that the whole "I'm good" thing constitutes an "equivocal" invocation of your right to remain silent. Sure, he might be saying "Leave me alone." But he might also be saying "Keep talking to me." So when the police, in the face of this equivocal request, simply keep talking to the defendant, and elicit incriminating information as a result, is that okay? Or are they required to ask "What do you mean by that? Do you want to talk or remain silent?"
Well, there's a Supreme Court case called Davis in which the Court held that the police facing an equivocal invocation are not required to seek clarification before continuing to question the suspect. And the Court's holding was pretty darn clear on that point. In Davis, the defendant said "Maybe I want a lawyer," the police kept questioning him notwithstanding this equivocal invocation, and the Court thought that was just fine, thank you very much. The Court said that “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” And further expressly "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.”
Pretty clear, right? So Rodriguez's post-invocation statements can be used against him, no?
Not so fast. Judge Milan Smith -- a Bush II appointee, and hardly a raving liberal -- writes an opinion joined by Judge Thompson (a Reagan appointee) and Judge Canby that holds that the statements made by Rodriguez post-equivocal invocation must be suppressed because the police didn't clarify what he meant by "I'm good."
"Wait a minute," you might say, "that's exactly what the Court in Davis went out of its way to hold was not required." And you'd be entirely right. But Judge Smith says that holding was by a slim "five-member Court
majority" -- definitely bothering to point that fact out -- and involved a defendant who had previously waived his right to remain silent unequivocally (e.g., signed a previous written waiver). The police don't have to ask clarifying questions from defendants who waive and then equivocally evoke, Judge Smith says. But they do have to ask clarifying questions from defendants who merely equivocally evoke. The rule in Davis, he argues, is thus factually distinguishable from the case at hand.
Which may or may not be right. Reasonable minds might disagree. Though I'm hardly going to doubt Judge Smith's neutrality on this one, since I think he's definitely reaching out to do what he thinks the law requires. Which I think speaks volumes about the merits.
But my principal point is this: This case ain't coming out the same way, IMHO, if Davis is a 9-0. The fact that it's a sharply split opinion creates play in the joints. Wholly apart from the facts, the fact that it's a 5-4 matters. To academic observers. To those who are results-oriented. And even to neutral and principled lower tribunals. Yes, the "law" is technically the same regardless of whether it's 5 votes or 9. But it matters. Definitely, in some cases. It matters.
So this is a good one. It exemplifies in a concrete fashion, anyway, something that I believe. Or at least I think it does. And hence thought I'd share.