Supreme Court Decisions: Summer 2013

Second, the court’s decision is limited to people using the federal mail-in form under the “motor voter” law.  Because the decision applies only to the use of the federal form, its impact in Arizona will be minimal because only about 5% of the people registering use the Federal form.  Most use the Arizona state form, which is not covered by the court’s decision.  Arizona can require proof of citizenship when accepting its own registration forms.

Third, the court specifically noted that the Constitution says that states have the “exclusive right” to determine the qualifications of voters in Federal elections. If Arizona has information that a registrant is not eligible to vote – by reason of non-citizenship or some other reason – then they can deny the federal application. 

The court’s decision was limited in scope so it was not a complete loss for integrity of the voting process but we still think the majority of the court got it wrong. Justice Clarence Thomas, with whom we often agree, got it right.  He argued that because the constitution gives state the exclusive right to determine the qualifications for voting, Arizona should be free to request whatever additional information is necessary to determine the qualifications of a voter – including proof the voter is a U.S. citizen.

At the subsequent criminal trial, prosecutors proffered his silence to the shotgun question as evidence of his guilt. Salinas was convicted and sentenced to 20 years. Salinas’s challenge on appeal was predicated on the contention that the Fifth Amendment’s prohibition on self-incrimination means that his silence could not be used against him at trial.

The Court divided predictably on the result in this criminal-procedure case: Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas all joined the judgment to affirm the use of Salinas’s silence at trial. Justices Breyer, Ginsburg, Sotomayor, and Kagan all dissented (with an opinion by Breyer) and would have prohibited Salinas’s silence from being used at trial.

What is really noteworthy was the split between the opinion of Alito for the plurality (including Roberts and Kennedy) and Thomas’s opinion (joined by Scalia) concurring only in the judgment. The source of the split was what to do about Griffin v. California, a 1965 Warren Court decision. Griffin (mis)used the Fifth Amendment and incorporated it to compel every state to follow the rule that no prosecutor or judge could comment on a defendant’s failure to testify at trial.

With his characteristic originalist approach, Thomas wrote that Griffin “lacks foundation in the Constitution’s text, history, or logic” and therefore must not be extended. Thomas noted that Griffin is offensive to both the text and history of the Fifth Amendment. Textually, Thomas observes that a defendant is not compelled to be a witness against himself because a prosecutor points to his failure to testify and says to the jury that an adverse inference may be drawn from that failure. Moreover, the history of the Fifth Amendment contradicts the judicially invented mandate of Griffin. Thomas commented that “at the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so.”

Because of the “indefensible foundation” of Griffin, Thomas and Scalia logically did not extend it to Salinas’s precustodial interview. Of course, Alito, Roberts, and Kennedy declined to extend it, too. The problem is that without grounding in the text and history of the Fifth Amendment, Alito’s opinion is little more than a policy statement that turns on Salinas’s failure to invoke the protection against self-incrimination. In a similar way, the Breyer dissent is nothing more than a policy statement favoring the extension of Griffin to this factual setting. One may agree with Alito’s approach over Breyer’s, but that is fundamentally a policy judgment and not a matter of interpretation.

Source: National Review