Berghuis v. Thompkins

In a world where the police are charged with protecting your Constitutional rights, they'd be climbing all over themselves to read you your Miranda Rights. We don't live in that world.

A podcast where we dissect and analyze the Supreme Court cases that have disrupted our civil rights, like shots of Taylor Swift disrupting an NFL broadcast

0:00:00.0 Speaker 1: We'll hear argument first this morning in case 081470 Berghuis versus Thompkins.


0:00:08.1 Peter: Hey, everyone, this is Andrew Parsons from Prologue Projects. I'm filling in for Leon while he is away. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Berghuis v. Thompkins, and they're joined by Jay Willis, Editor-in-Chief of Balls & Strikes. This is a case about the measures police take to circumvent your constitutional right to remain silent while under arrest. It's a concept that everyone knows from pop culture.

[video playback]

0:00:51.0 Peter: Miranda rights are meant to protect you from self-incrimination. So naturally, nearly as soon as those protections were outlined, police and prosecutors set out to undermine them. This case is a result of that, and you can probably guess the outcome. This is 5-4, a podcast about how much the Supreme Court sucks.


0:01:17.6 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have disrupted our civil rights, like shots of Taylor Swift disrupting an NFL broadcast.


0:01:27.8 Rhiannon: Disrupting, enhancing? Open question.

0:01:31.3 Peter: Fair enough. I'm Peter, I'm here with Michael.

0:01:35.8 Michael: Hey, everybody.

0:01:37.2 Peter: And Rhiannon.

0:01:38.0 Rhiannon: Hey, I'm not even a Swifty like that. Do not write in the paper that I'm a Swifty.


0:01:43.2 Peter: Our White friend, Rhiannon [laughter] and our buddy, Jay Willis.

0:01:47.2 Rhiannon: Yay.

0:01:47.8 Michael: How many PPR points can Taylor Swift put up though? That's the question.

0:01:50.9 Jay Willis: That is the question.

0:01:53.6 Peter: I do have to say, personal announcement. Weird time to be a Chiefs fan. Weird time to be a Chiefs fan who thinks that 1989 was one of the better albums of the last decade, I'll say that.

0:02:02.8 Rhiannon: Hey, this is your time, Queen. Go off, sis.

0:02:07.2 Peter: In a lot of ways, it is. I'm explaining a lot of things to a lot of different people who are on different sides of this. [laughter]

0:02:13.8 Michael: Yes.

0:02:16.6 Peter: If Taylor Swift gets the Tomahawk chop canceled, does she get the Nobel Prize? I say maybe. [laughter]

0:02:19.0 Peter: No, we're gonna go the other way with this. We're gonna have Taylor doing the chop...

0:02:25.8 Rhiannon: Oh, no.

0:02:27.3 Peter: She's gonna bang the drum. A lot of casual fans might not know that there are even more racist rituals deep within Arrowhead Stadium...

0:02:32.1 Michael: That's right.

0:02:32.4 Peter: Like banging the giant drum. We're gonna get her doing that pretty soon. And then she's gonna come out as a full-throated defender of the team name.


0:02:39.4 Rhiannon: Oh no.

0:02:40.3 Michael: Didn't somebody used to ride around on a horse in like full headdress and stuff?

0:02:44.7 Peter: That was in the 1980s. Yes, of course. We have eased off of that. And now, our mascot is the K. C. Wolf, a silly looking wolf.

0:02:54.2 Michael: Nice.

0:02:55.5 Peter: You can't say it's racist, [laughter] folks, you can't say it's racist.

0:03:00.2 Michael: The only thing about the Chiefs that you can't say that about. [laughter]

0:03:01.3 Rhiannon: Right. It's the only thing.


0:03:04.4 Peter: Oh shit. All right. Before we get started, Jay Willis, of course, been on the podcast couple times now. What are you? Editor-in-chief of Balls & Strikes? Is that your working title right now?

0:03:14.8 Jay Willis: That's right.

0:03:16.6 Peter: Jay, of course, as always promoting his phenomenal website, Balls & Strikes. And we'll let you shill it at the end, Jay. But for now, let's talk about our case, Berghuis v. Thompkins. This is a case about one of the most famous rights in all of American law, the right to remain silent. It is one of your Miranda rights. It's the first one that the cops say in the movies. And on the surface, it's a very simple right. It is an extension of your right against self-incrimination, and it means that the police cannot force you to volunteer information during interrogations. You have the right to stay silent. And if a benevolent God existed, we would not need to dig much deeper than that. But we are not so blessed. In this case, from 2010, the cops bring in a suspect for interrogation in a shooting. The suspect remains silent for about three hours, and finally the cops try to play into his religious faith to get him to talk. And it works. Now, what he claims Thompkins, is that by remaining silent for three hours, he had functionally invoked his right to remain silent, and the cops should have had to stop the interrogation. But the Supreme Court, in a 5-4 decision, disagrees. What they say is that you need to invoke your right to silence out loud.


0:04:47.4 Jay Willis: Let's just sit with that one for a sec. [laughter] Let's just... It's a little bit of a thinker. [laughter] So, just chew on that.

0:04:55.5 Peter: I do wanna mention that we've thought about doing this case for so long. We're like, "But it's so stupid."

0:05:01.0 Michael: It's so dumb, man.

0:05:06.9 Peter: How do you talk about this for a whole episode? I still don't really know, but we're gonna give this a whirl.

0:05:09.9 Michael: And the answer, get a guest.


0:05:13.2 Peter: That's right.

0:05:14.5 Michael: Let them fill up 25% to 50% of the time.


0:05:21.2 Peter: So Rhi, I will pass it to you.

0:05:23.9 Rhiannon: Sure. Let me jump in here. It is a real, real dumb case, but you know what? Not dumb for Mr. Thompkins, right? This is a real person, and I think what's really compelling about these cases is that this is the stuff the Supreme Court has given the green light to, and so it happens every day, all of the time, to regular people, constantly. This is normal, folks. So like Peter said, this case comes down in 2010, but the events here started in January, 2000. A drive-by shooting occurs outside a mall in Southfield, Michigan. There are a few suspects, people that were suspected of being in the car where the gunshots came from. But in the moment, the people in the car actually get away. So it's over the course of subsequent months that the suspects are found and arrested. And actually, it's about a year later when the person in this case, Mr. Van Chester Thompkins, is tracked down.

0:06:20.8 Rhiannon: So Mr. Thompkins is taken into custody on suspicion that he was involved in the shooting, and he's interrogated by two police officers. At the beginning of the interrogation, one of the cops presents Mr. Thompkins with a form that has Miranda rights on it. It's a form that basically informs somebody in custody of their Miranda rights. By the way, this is incredibly standard. Certainly every major and probably 99% of every minor smaller police department in the country does this. It's not only that an officer might give you some sort of warning about your rights when you are arrested, but also at the beginning of an interrogation, the cops want your written waiver.

0:07:05.9 Rhiannon: They have it on a piece of paper. They want you to sign and say, "I understand my rights. The cops have told me about my rights, and now I'm ready to talk." Right? So this is very standard, like many other forms across the country. This is the form that was presented to Mr. Thompkins. It said, number one, you have the right to remain silent. Number two, anything you say can and will be used against you in a court of law. Number three, you have a right to talk to a lawyer before answering any questions, and you have the right to have a lawyer with you while answering any questions. Number four, if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

0:07:45.1 Rhiannon: Number five, you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned. So the form, as is standard, asks for a signature. The cops want you to sign that you understand your rights and you're ready to talk. And Thompkins refused to sign the form. He explicitly declined. He said, "I do not want to sign." The cops later say that they asked Thompkins to verbally confirm that he understood his rights, and maybe he did. Then on another date, they say they don't remember if they asked Thompkins verbally or not. They don't remember if he gave an explicit answer that he did understand his rights. Cool.

0:08:31.9 Peter: That's weird.

0:08:32.7 Jay Willis: All right.

0:08:33.0 Rhiannon: It's a freight train and it has left the station, baby. So the cops start their interrogation, and over the course of three hours of questioning, Thompkins remained largely silent. That is the quote from the cop himself. Largely silent. Thompkins gave a few very short answers to questions that weren't directly related to the case. He said in one instance that he didn't want a peppermint. In another instance, he said that the tiny school desk that he was being forced to sit in was uncomfortable. It was hard. But otherwise, he was silent and did not answer questions. Thompkins did not say he wanted an attorney. He did not say out loud that he didn't want to talk to the police. He's just silent. And in fact, one of the officers himself testifies later that Thompkins was "not verbally communicative" and he described the... The officer described the interrogation as, "very one-sided" and "almost a monologue." The cops themselves are saying, "We're the only ones doing the talking. This guy was silent."

0:09:40.7 Jay Willis: But was he exercising his right to remain silent?

0:09:42.5 Rhiannon: That's the big question.

0:09:44.6 Jay Willis: Or had they just not caught his interest yet? [chuckle]

0:09:48.8 Rhiannon: That's the big question. Now, nearly three hours into the interrogation, the police switch up their approach and they bring religion into the mix.

0:10:00.3 Michael: These fucking cops went for three hours before they were like, "We should try a new tactic with this guy."

0:10:04.1 Rhiannon: And it's fucking classic. It's classic. I love it when an agent of the state carrying a gun, gets done with their mourning session of beating up a 19-year-old in handcuffs, to invoke the word of God. Right? [laughter] Fucking classic. Way to go, pigs. Anyways, so after three hours, the cops bring up God. They asked three questions, and Thompkins gives three one-word responses. The cop says, "Do you believe in God?" Thompkins says, "Yes." The cop says, "Do you pray to God?" Thompkins says "Yes." And the cop says, "Do you pray to God to forgive you for shooting that boy down?" Thompkins says, "Yes." This is not a detailed confession by any means. It's a one-word response to a question. It certainly does indicate maybe some culpability...

0:10:45.6 Michael: Not even clear what boy he's referring to there.

0:10:48.0 Rhiannon: It's not clear what boy he's referring to. It's not clear Thompkins' involvement. There is a question at trial whether Thompkins is the one who shot the gun. And so asking, "Do you pray to God to forgive you for shooting that boy down?" And somebody saying yes, is not specific enough to say, "I shot that person." It's like maybe he feels guilty about his involvement, about being there, about witnessing it. It can be a fucking thousand things. Anyways...

0:11:15.5 Peter: Bunch of defense lawyers over here. [laughter] Here's the real lesson, folks. One, we'll get into this later. Don't talk to cops.

0:11:23.5 Rhiannon: That's right.

0:11:24.3 Peter: Two, don't start talking to cops about God.

0:11:30.1 Rhiannon: Goddamn.

0:11:30.9 Jay Willis: They're trying to trick you.

0:11:33.3 Peter: They're always trying to trick you, they're always trying to trick you. We discussed this during prep. I would go a step further and say, don't become religious. It just creates this weakness in the interrogation room. [laughter] It gives the cops an angle.

0:11:48.6 Michael: During prep, when I told you to use this line, I wasn't being serious, Peter.


0:11:57.3 Peter: When I feel something in my heart, I say it on the show.


0:12:00.3 Rhiannon: So Thompkins is charged based on that "confession," at least that self-incriminating statement. Thompkins is charged with first degree murder and assault with intent to commit murder. His lawyer files a motion to suppress. We've talked about a motion to suppress a couple of times. This is the legal filing that argues that when the cops have collected evidence from you in violation of your constitutional rights, the state shouldn't be able to use that evidence against you at the trial. So their argument in the motion to suppress was that Thompkins had invoked his Fifth Amendment Right to remain silent by remaining silent, and that the police were therefore required to end the interrogation, but they didn't. So they got the self-incriminating statement in violation of Thompkins' rights, say his defense lawyers, and they shouldn't be able to use that statement at trial.

0:12:49.2 Rhiannon: The prosecutor shouldn't be able to say, "Thompkins incriminated himself, Thompkins confessed to this," whatever. The motion to suppress, however, is denied. The trial judge in Michigan said Thompkins spoke to the officer, "Sporadically." So the remaining silent doesn't invoke your right to remain silent. So they go to trial. Thompkins is convicted, he's sentenced to life without parole. And so he appeals the conviction on a number of issues. But one of them, and the one that is really the center of this case, and the one we're focusing on today, is about his Fifth Amendment Rights, that he had invoked his right to remain silent by remaining silent, and that police violated that right by continuing to interrogate him.

0:13:33.1 Jay Willis: Yeah. So let's talk law here. First, we should talk about why there is a right to remain silent during interrogations. The Fifth Amendment says that no person can be compelled to testify against himself, which we call the right against self-incrimination. And courts have long held that this has component parts, including the right to simply not say anything, 'cause your statements can be used against you as evidence. And then in Miranda v. Arizona, the Supreme Court held that suspects must be informed of this right by police before custodial interrogations can proceed. But this case raises the question of how you invoke the right to silence. When you want to invoke your right to an attorney, for example, you can just say you want an attorney, and boom, the interrogation has to stop. Nothing the cops can really do. But it's sort of awkward to invoke your right to remain silent by speaking out loud. So the question becomes this, does remaining effectively silent for several hours implicitly invoke the right to remain silent? If a guy is remaining silent, does that mean he has invoked his right to remain silent? [laughter] This is a question that only a lawyer could find difficult. [laughter] And unfortunately for us, the Supreme Court is littered with them.

0:15:02.2 Michael: That's right.

0:15:03.1 Peter: My God, imagine if this episode could be like 20 minutes and we could just answer the question and be like, well, that makes a lot of sense.

0:15:10.2 Jay Willis: I mean, you can see why we struggled with this one. We were like, well, what is there to say about this case?

0:15:13.2 Rhiannon: [chuckle] You're right.

0:15:14.0 Michael: It's so fucking stupid.

0:15:18.4 Peter: The dumbest case on earth. It's a... Okay, let's not get carried away. [laughter] Anthony Kennedy.

0:15:25.2 Michael: We'll get to Anthony Kennedy.


0:15:30.3 Rhiannon: No, it's time now, Jay. We're talking about Anthony Kennedy.

0:15:31.2 Peter: Hell yeah. [chuckle] Anthony Kennedy. Hold on, let me check the Wikipedia. Still no RIP. Okay. [laughter] Anthony Kennedy says that staying silent for hours on end does not invoke the right to remain silent, because according to Anthony, the right needs to be invoked unambiguously. He says that had Thompkins said out loud that he wanted to remain silent, that would've been unambiguous. Now, folks, I've never claimed to be the smartest guy in the world, I'm just a guy with a podcast.

0:16:11.2 Rhiannon: And a JD.

0:16:12.0 Peter: And a JD. But to say that saying words out loud is a less ambiguous declaration of your intent to remain silent than actually remaining silent, I just feel like we're leaving the plane of regular logic here.

0:16:32.2 Rhiannon: Absolutely. Absolutely.

0:16:35.0 Peter: We're deep in some lawyer shit. This is unfiltered Harvard brain. This is the kind of stuff you can only get from Harvard. And I wasn't smart enough to get in, and Jay, [laughter] I don't know if this is the kind of stuff that you learned...

0:16:48.8 Jay Willis: Do not pin this shit on me.


0:16:55.6 Peter: This is the kind of logic that you need to be wearing a sweater vest to understand. [laughter] If you have a trust fund, it starts to click into place in your brain. So not only is this logic wildly counterintuitive, it basically ensures that the common person in police custody will not understand how to exercise the right. Like if you tell the average person that they have the right to remain silent, how exactly are they supposed to deduce that they cannot exercise that right by remaining silent?

0:17:29.9 Rhiannon: Exactly. And I just think the requirement of the invocation is in and of itself really fucking weird. What other right do you have that you have to say, "I am invoking the right in order for the right to mean anything." It's very strange, right? And it sets rights for criminal defendants as sort of categorically, qualitatively different than other rights.

0:18:04.9 Peter: Now, Anthony Kennedy compares it to the right to counsel, because again, with the right to counsel, you have to say it out loud, that you want a lawyer for the right to be invoked. So Kennedy is like, "Well, why should this be different?" And the answer, Anthony, [laughter] is that when you sit there being quiet, you aren't actively requesting a lawyer, but you are actively exercising your right to remain silent.

0:18:31.2 Jay Willis: That's correct.

0:18:35.7 Peter: That's not a subtle difference. That's what we call in the biz, a material difference...

0:18:37.7 Rhiannon: Absolutely.

0:18:38.4 Peter: In my view.

0:18:40.2 Jay Willis: And if you're required to speak, that means you can't really be silent, right? Like, that's...

0:18:46.0 Rhiannon: By definition.

0:18:46.9 Peter: You can see a world where the exact opposite happens, and the court still comes out in favor of the cops.

0:18:54.0 Rhiannon: Exactly.

0:18:54.5 Peter: Where the guy's like, "I invoke my right to remain silent." And Anthony Kennedy is like, "What are you talking about? How can you be invoking it by saying words out loud?"

0:19:04.0 Jay Willis: Right. Sounds like a lot of words, bro.

0:19:06.3 Michael: Yeah, yeah.

0:19:06.6 Rhiannon: No, that case... We're about to pick apart the reasoning here, but that case would have come down... The argument from Anthony Kennedy would have been, "Well, by verbally invoking and verbally engaging with the officer, it indicated a willingness to talk." Right?

0:19:21.6 Peter: Yeah. You are waiving your rights.

0:19:24.6 Rhiannon: Absolutely.

0:19:25.3 Jay Willis: Yeah. By saying, "I want to use my right to remain silent," you're actually waiving your right to remain silent...

0:19:28.3 Rhiannon: Exactly, yeah.

0:19:30.7 Jay Willis: Absolutely. Absolutely how this would have gone.

0:19:32.8 Michael: Yeah. You guys, Anthony Kennedy is going to cancel his Patreon subscription after this.


0:19:38.9 Rhiannon: It's totally counter-intuitive, Peter. I think it's a really, really good point that the logic, really the illogic of the opinion, basically ensures that a regular person has no idea how to exercise this right.

0:19:53.4 Peter: And one analogy I wanted to make to clarify this point, you don't need to actually say, "I want a lawyer" to necessarily invoke your right to counsel. Another way, for example, is for your lawyer to show up...

0:20:08.5 Rhiannon: You have a lawyer, yep.

0:20:09.6 Peter: Which actually seems like a better analogy to remaining silent, because in both cases, you are actively exercising the right in question. Now, Kennedy does not address this, because he's not a smart guy. [laughter] He's a dumb guy. Again, I'm just a guy, I thought of this analogy in 10 minutes, and I'm, again, just a guy with a podcast, could not get into Harvard.

0:20:33.3 Jay Willis: Anybody who's ever watched Law & Order has seen a moment in the show where the cops are questioning someone and a lawyer bursts in and is like, "This interview is over. You're trying to pull one past my client here?" Blah, blah, blah. That is a better grasp of how rights work than Anthony Kennedy has...

0:20:55.2 Rhiannon: Right. Yeah. Exactly.

0:20:56.9 Jay Willis: With several federal society clerks at his disposal.

0:21:00.2 Peter: Right. The median Law & Order writing room guy...


0:21:03.4 Rhiannon: Gets it.

0:21:03.5 Peter: Is doing better than Anthony Kennedy.

0:21:07.7 Jay Willis: Yes. Absolutely.

0:21:07.7 Rhiannon: And so, to this point that the case doesn't make sense, the holding doesn't make sense, and it certainly doesn't make sense to the regular person who would find themselves in need of invocation of their right to remain silent, which is to say, somebody who is being interrogated while in custody. Another aspect that purposely obfuscates what the requirements are to invoke your right to remain silent, remember, that Miranda speech that you get when you're arrested, the Miranda card that you're supposed to read and sign to say, "I understand my rights," that card doesn't tell you how to invoke your rights. Right?

0:21:48.0 Jay Willis: Nope.

0:21:48.4 Rhiannon: It says, "You have the right to remain silent." It doesn't tell you that you have to clearly and unambiguously invoke the right with legal magic words that nobody has ever been told. So, if a clear and unambiguous invocation of the right is a requirement for having the right, then you would think that the Miranda warnings that you get would explain that, if they were full actual warnings, if they were full actual explanations of what's going on. They don't do that. And when people do verbally invoke their right to remain silent, courts across the country have said that those are ambiguous statements and they are not clear invocations. You do also have to clearly invoke your right to an attorney. If you don't have an attorney who's gonna find out that you're being interrogated and show up and shut the interrogation down, you do have to clearly and unambiguously invoke your right to an attorney. There's a famous case that a lot of people who pay attention to this kind of stuff probably heard about. Back in 2017, a case out of Louisiana where the person being interrogated, the suspect said, "Just give me a lawyer, dawg." And the courts said that that was unclear, that that was an ambiguous invocation of the right to counsel, because it could be interpreted as the suspect asking for a lawyer dog, a canine lawyer...

0:23:09.2 Michael: 'Air Bud'

0:23:09.3 Peter: Right, 'Air Bud' lawyer.

0:23:11.7 Rhiannon: Yes.

0:23:11.8 Jay Willis: The 'Air Bud' lawyer, yes.

0:23:11.9 Peter: Show me in the Constitution where it says a lawyer can't be a dog?


0:23:16.9 Rhiannon: So, all of this stuff, where courts are supposedly requiring clear and unambiguous invocation of your rights, all of it gets extremely muddy and extremely unclear what those requirements are to invoke your rights, when lawyers and judges get on the case. So, back to regarding the right to remain silent, many, many, many invocations of the right have been construed by courts to be ambiguous, to be unclear, to be not really invoking your right to remain silent. This happens constantly, every day. And Sotomayor, we'll talk about her great dissent in this case in just a little bit, but she even lists a bunch of real life examples, real cases in a footnote in her dissent. I'm just gonna list a fe here. She quotes the statements that people made, believing that they were invoking their right to remain silent, trying, attempting to invoke their right to remain silent, and that courts said were not good enough, were ambiguous, it was unclear. Here's one quote, "I'm not gonna talk about nothing." Court said that's ambiguous.

0:24:22.9 Peter: Well, he said he's not gonna talk about nothing.


0:24:26.6 Rhiannon: And in fact, the court said, "It's a taunt. It's a provocation to the police, that's not actually invoking your right to remain silent."

0:24:33.9 Jay Willis: 'Cause he's taunting the police with invoking his constitutional rights.


0:24:36.8 Rhiannon: That's right, yeah.

0:24:38.8 Jay Willis: The worst taunt. The worst kind of taunt you can do.


0:24:40.7 Rhiannon: Another quote. "I don't even like talking about it, man. I told you what happened. I mean, I don't even want to, you know what I'm saying, discuss no more about it." That was unclear. That was ambiguous. Another, "And since we're not getting anywhere, I just ask you guys to go ahead and get this over with, go ahead and lock me up, let me go and deal with Sedgewick County Jail. I'm ready to go to Sedgewick County, let's go." Not enough to shut down the interrogation, not enough to say, I'm done talking. Right? In a court's interpretation.

0:25:09.8 Jay Willis: Literally, "I'm not talking, send me to jail," is not enough.

0:25:13.8 Rhiannon: Is not enough.

0:25:13.9 Michael: You have to say it like a medieval knight, like, [laughter] "I hereby invoke...

0:25:19.6 Rhiannon: Exactly, yes.


0:25:20.2 Michael: My right to silence."

0:25:22.5 Rhiannon: Exactly.

0:25:23.4 Michael: Like a fucking trial by combat in Game of Thrones.

0:25:25.0 Rhiannon: Absolutely. "Put me in jail. Just get me out of here. I don't wanna sit here anymore, I've been through enough today."

0:25:31.2 Jay Willis: Classic inviting just more questions. That person wants to hear more questions.


0:25:34.6 Michael: Yes, yes.

0:25:35.0 Peter: All of these judges have been in relationships where a woman was trying to dump them for weeks on end.


0:25:44.1 Rhiannon: "Okay, if you're implying that I've done it, I wish to not say any more, I'd like to be done with this. This is just ridiculous. I don't wish to answer any more questions." This, a court said, was ambiguous because it was conditioned on the officer's implication that the suspect committed an assault. What? Yeah, the whole interrogation is based on the implication that you've committed a crime. What the fuck are you talking about? [chuckle] And then, courts have also construed statements as expressing a desire to remain silent only about a particular subject. So, "I really don't wanna talk about that" only conveyed unwillingness to discuss one subject, but not others, not enough to shut down an interrogation, not a clear invocation of your right to remain silent. So, yeah, I just get back to, how is a person supposed to know the magic legal words other than plain language that they use to communicate every day?

0:26:47.6 Peter: Right. And before we move on to the dissent, there is one other part of the opinion. The last thing that Kennedy does is analyze whether Tomkins waived his right to remain silent, because even if he didn't invoke the right, the cops still need to show that he waived the right, and there's a lot going on here. And what Kennedy says is that by eventually speaking, he waives the right. We don't need to get into this too much, but I did want to just point out that when it comes to invoking the right, the court demands that the defendant make this preposterously unequivocal statement announcing his intention to invoke the right, but when it comes to waiving the right, suddenly, any implication will do. Any little inference the cops can make. If they feel like he's not giving quiet boy vibes, the Supreme Court's like, "That's waiver. Yeah."

0:27:42.5 Rhiannon: Yeah, yeah, exactly. And moving into the dissent, like we said, it's written by Sonia Sotomayor, I think it's a good dissent. What you don't find in this dissent, which I don't think is a criticism, it's just an observation, is, Sotomayor isn't necessarily talking about the real world feeling, the psychology of being questioned by the police, what it feels like to be questioned by the police, what that does to a person mentally and otherwise, the effect on a person, the confusion that a person experiences when being interrogated by the police. But what she does do is a very thorough, very strong run down of what the fuck Miranda v. Arizona means and how the court is departing from very, very strong precedent on exactly this point. So, she starts the dissent, "The court concludes today that a criminal suspect waives his right to remain silent, if, after sitting tacit and un-communicative through nearly three hours of police interrogation, he utters a few one-word responses. The court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of waiver, must counter-intuitively speak and must do so with sufficient precision to satisfy a clear statement rule that construes ambiguity in favor of the police." Very clear-eyed in saying what the fuck this decision is, in saying, "You are requiring of people a very unclear requirement, a very unclear rule, and basically just finding in favor of the police."

0:29:29.3 Jay Willis: Yeah, if you read enough of these opinions, in my view, there's like a couple of archetypical liberal dissents. There's the cold fury dissents, good zingers, righteous anger. I'm thinking about the Shelby County dissent that made Ruth Bader Ginsberg a pop culture icon. There's appropriately somber, mournful dissents. I'm thinking about the joint dissent in Dobbs, for example. There's really long-winded boring technical ones. Those are the ones that Stephen Breyer wrote.


0:30:01.3 Rhiannon: Absolutely.

0:30:02.2 Jay Willis: But this might be my favorite type, and it reminds me a little of Kagan in Rucho too, that's just like, "Are you fucking kidding me, bro? Are you fucking kidding me... "

0:30:10.7 Peter: Yes.

0:30:11.4 Michael: "With this shit." For like 10 pages.

0:30:14.3 Rhiannon: Yeah.

0:30:14.4 Jay Willis: There are swathes of this dissent that are just block quotes of Miranda...

0:30:17.4 Rhiannon: Yes.

0:30:17.9 Jay Willis: Incredulous at this decision from Kennedy that purports to apply Miranda, but in reality, guts it. I think the upshot of it, as she points out, is there's no incentive for cops to do anything other than continue to ask questions and treat anything the defendant does... Like going out of your way to find a way to maybe look at it as possibly ambiguous and reading any hedge by a defendant, someone who is scared and powerless and unsure of themselves, as equivocation.

0:30:54.4 Michael: Better to elicit the self-incriminating statements and litigate...

0:30:57.5 Peter: See what happens...

0:30:58.3 Michael: The ambiguity of their invocation of their rights.

0:31:01.8 Peter: Absolutely.

0:31:04.1 Michael: Than actually doing anything to ensure that those rights are being protected.

0:31:09.2 Peter: Yeah, this guy did the most sensible thing under the circumstances, for somebody who hasn't paid the court a million dollars for law school. [laughter] And there's a pretty funny point towards the end where she responds to Kennedy's bit about, "Well, how can police be sure if someone is invoking their right?" And she's like, "What if cops just asked a follow-up question?"

0:31:35.2 Rhiannon: Yes.

0:31:35.7 Peter: This has never occurred to Anthony Kennedy.

0:31:37.3 Rhiannon: Yeah, yeah. She even gives the follow-up question, she says, "What about if the cops asked, "Do you wanna talk to us?"

0:31:46.5 Peter: "Do you want to talk to us?" Yeah.

0:31:46.6 Rhiannon: That would be very clear.

0:31:46.7 Peter: "Are you invoking your right to remain silent?"

0:31:49.3 Rhiannon: Exactly. Exactly.

0:31:50.5 Michael: Cops design trainings around Supreme Court decisions and design regular practice around Supreme Court decisions, just as a matter of routine. For example, giving the Miranda warning card.

0:32:03.5 S?: Yep.

0:32:06.9 Rhiannon: Exactly, yes.

0:32:08.1 Michael: This is just you clarify what their obligations are, in order to make sure their rights are protected. But that's not the point of this opinion. The point of this opinion is to undermine those rights and undermine Miranda, not protect them.

0:32:19.2 Rhiannon: Exactly.

0:32:19.6 Michael: So, we should talk about Miranda v. Arizona, because that's central to this case, its understanding, and how it's being bastardized. Kennedy describes it as just saying, "The Miranda court formulated a warning that must be given to suspects before they can be subjected to custodial interrogation." And that's true, in a sense, in that Miranda did do that...

0:32:44.0 Rhiannon: Sure, right.

0:32:46.7 Michael: But it is a 100-page opinion, with a lot of analysis in it, in-depth. They review police manuals on interrogation, they talk at length about custodial interrogation, and it's concerned with more than just the rote recitation of these warnings. That's not what Miranda's about. What Miranda is about is the inherent coercive nature of incommunicado custodial interrogation and how you protect the rights against self-incrimination in those settings.

0:33:28.1 Rhiannon: Exactly, right.

0:33:29.1 Michael: They're worried about cops who historically would beat confessions out of people, but who also had decades of training in psychological pressure, learning to elicit what were not consensual or voluntary confessions.

0:33:48.2 Rhiannon: Exactly.

0:33:49.1 Michael: That's the issue here. And so I have some quotes I wanted to read from the opinion, one is... So, they say, "The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." Question whether three hours of continuous interrogation can elicit a voluntary waiver of your right to remain silent. I think the very holding of Miranda is that it cannot. That is not voluntary. The court says, "If however he indicates in any manner, in any manner and at any stage, that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him."

0:34:43.3 Rhiannon: Yes.

0:34:44.4 Michael: Not, "He needs to make a clear statement with lawyerly precision."

0:34:47.4 Rhiannon: Right. [chuckle]

0:34:47.5 Peter: Yeah.

0:34:48.3 Michael: "He needs to indicate in any manner. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." Miranda is extremely protective of criminal defendants, because they are very aware of the history of abuses, physical and otherwise. They literally say, "We're not just concerned with physical abuse," they say, "To be alone with a subject is essential to prevent distraction and to deprive him of any outside support." We have sophisticated well-trained interrogators with decades of experience, informed by over a century of experience in their manuals against unsophisticated civilians who are cut off from expertise, cut off from support, for hours on end. And the Miranda case is saying, "You cannot get something reliable and voluntary and intelligent out of this situation." That's what Miranda is about, that's the heart of Miranda, and the warnings are a safeguard against that. But they are not it, they are not the substance, they are not what it's about. They are an attempt at coming up with a way to protect our rights in these inherently coercive situations, which is the exact opposite of what this case is doing.

0:36:28.0 Rhiannon: Yeah, what's so unbelievable and what Sotomayor, I think points out with some really nice precision, but again, like Jay said, just block quoting Miranda, is that Miranda talks specifically about this fucking situation. This is a quote from Miranda, "Presuming waiver of the Fifth Amendment Right from a silent record is impermissible, the record must show or there must be an allegation and evidence which show that an accused was offered counsel, but intelligently and understandingly rejected the offer. Anything less is not waiver." Miranda talks about this fucking case that's in front of the Supreme Court decades later, and the Supreme Court is saying, "We have new rules now. We're not paying attention to that.

0:37:16.9 Jay Willis: Dumber rules.

0:37:18.3 Rhiannon: Yeah, exactly.

0:37:19.3 Jay Willis: Much dumber rules.

0:37:20.9 Rhiannon: Exactly. We're weakening it. And I think that tees up really a line of jurisprudence, or this case, Berghuis v. Tompkins comes in a line of jurisprudence of the court after Miranda, weakening Miranda, right?

0:37:34.6 Jay Willis: If you read this case, Tompkins, and read the citations to Miranda, and then you read Miranda, I wouldn't blame you for being like, "Is there a second Miranda?" These two cases are not the same. The Miranda that comes through in Tompkins Bears no resemblance to the actual Miranda decision. Calling it watered down is almost too generous.

0:37:52.7 Michael: Oh, absolutely.

0:37:54.8 Peter: Yeah. I think the majority perceives of Miranda as a set of check boxes that cops need to sort of work their way through before they do whatever the fuck they want.

0:38:07.1 Michael: Right, that's how cops...

0:38:07.1 Rhiannon: Because that's how cops perceive it. [chuckle]

0:38:10.0 Michael: But I think usually, you expect lawyers and judges to have a more nuanced take on it. Miranda, for cops, is just a hurdle to get over in their efforts at throwing someone in jail. I think we should be taking it more seriously.

0:38:26.6 Peter: Yeah. So, Mike, I know you've talked before about how Miranda is one of your favorite Supreme Court cases.

0:38:32.8 Michael: Absolutely.

0:38:33.5 Peter: So I have bad news about the last 50 years.

0:38:33.6 Michael: Fuck.


0:38:37.7 Peter: So Miranda was decided in 1966, under the leadership of Chief Justice Earl Warren, the Warren Court, sort of this brief period in the court's history when it was something close to resembling cool.

0:38:50.2 Rhiannon: Yeah, yeah. Almost.

0:38:52.4 Peter: Just barely. But a few years after this, Richard Nixon takes office, he sets about the task of overhauling the Supreme Court, and in his first three years in office, he manages to replace four of the Warren Court's justices and installs Warren Berger, reliable conservative, as the chief justice. Court hasn't had a true liberal majority since. And it really starts to show in this line of cases that really starts systematically undermining Miranda.

0:39:21.8 Peter: And it's also, I think, important to remember that as cool as Miranda was, it was a close decision. It was five to four or six to three, depending on how you want to characterize a partial dissent. But the dissenters in that case were very much echoing the kind of Fox News, Law & Order shit that you'll hear today. I'm quoting, "The court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation." So years after Miranda, as it turns out, once cops can't beat confessions out of people anymore, their job gets a lot harder. And so they start coming to the Supreme Court basically saying, "Hey, can you make like a little exception for this?" And the court is very, very happy to do so over and over again. So Harris v. New York, I believe it's 1974, it says you can use illegally obtained evidence to impeach a defendant's testimony, but not as evidence of their guilt. I want to emphasize how stupid that is. It is basically saying, "Well, you just said X at trial, but at the station, you said Y." The court says that you can enter that to impeach their testimony as if a jury isn't going to think about that un-mirandized statement when deciding innocence or guilt.

0:40:48.0 Peter: 1980 Rhode Island, v. Innis, facts of this one are really wild. The cops pick up Thomas Innis on suspicion of robbery. There's a missing gun. Innis says, "I want a lawyer," so the cops drive him to the police station. And while they're in the car, they put on a little play. The cops start stage whispering about the proximity of the crime scene to a school for children with disabilities and how awful it would be if one of these children were to find the gun before the cops did. Innis is like, "Okay, okay, fuck, I'll show you where the gun is." I wanna stress again, he says he wanted a lawyer. The court says, this is totally fine. Basically, the cops are allowed to trick you if they put on a little performance and they don't put question marks at the end of their questions.

0:41:34.3 Jay Willis: They're not interrogating you.

0:41:36.1 Peter: That's right.

0:41:37.4 Rhiannon: Right.

0:41:37.9 Michael: It doesn't say in the constitution that you can't leverage disabled children...

0:41:41.4 Jay Willis: That's right.

0:41:41.6 Michael: To get what you want.

0:41:43.5 Peter: I knew this show would take an originalist turn eventually. [chuckle] New York v. Quarles 1984 creates a public safety exception to Miranda. I can get a hint about where this is gonna go. But the cops arrest a man with an empty holster, and they say, "Where's the gun?" They do not give him his Miranda warning. He tells them where it is. The courts in an opinion written by a friend of the show, William Rehnquist, says, "If cops determine that there are exigent circumstances, they can question a suspect without warning them and still have that admitted as evidence."

0:42:20.3 S?: What was the exigent circumstance there? Was it that they thought the gun might shoot someone on its own?

0:42:24.1 Peter: There's a gun somewhere, we don't know where.

0:42:28.8 Rhiannon: A gun exists.

0:42:30.6 Peter: Yeah. Somewhere in the world.

0:42:30.7 Jay Willis: I've been assured that guns don't kill people. People kill people. So an unattended gun should be incredibly safe.

0:42:37.9 Peter: Yeah. Obviously, all this does is give cops an incentive to say, "I feared for my safety and the safety of the public," to skirt your constitutional rights.

0:42:47.2 Rhiannon: That's right.

0:42:48.4 Peter: And then the last one I'll say came a couple years after this decision, Salinas v Texas. The upshot of that case is, if a person who isn't in custody doesn't answer a police officer's questions, they're just being questioned, that silence can be used against them in court later, unless they expressly invoked their Miranda rights, rights the police had not even read to them yet.

0:43:13.0 Rhiannon: Right. Because they're not in custody. Incredible.

0:43:16.9 Peter: Steven Breyer, gotta hand it to him sometimes, his dissent echoes the language that Sotomayor says, like, "How can someone who's not a lawyer know what words are legally magic?" If your constitutional rights depend on you speaking legalese, sorry, they don't exist.

0:43:33.5 Rhiannon: Exactly.

0:43:37.3 Michael: I first became familiar with this line of cases my third year of law school, taking an appellate drafting class where the whole year was about this Miranda case in New York courts, which is part of where my deep appreciation for Miranda comes from, but also, I think was very educational for me because even as a pretty well-informed third year law student, I had no idea that there had been a multi-decade assault on Miranda rights, that these were something that were highly controversial at the time and are still reviled within reactionary and conservative and law enforcement circles, generally. That this was something that they've tried to undo via legislation in the '60s...

0:44:29.1 Peter: A statute, yeah.

0:44:30.6 Michael: Via a case in 2000, that this is something that has been a conservative bugaboo, for real, for a very long time. I had no idea. I don't think that is something that is understood in the popular consciousness. And also created an appreciation for me for judicial activism. This is a case that is unambiguously wildly popular with the general public, is, as Rhiannon has pointed out, is an example abroad of American greatness that other countries have copied.

0:45:09.2 Peter: That's one of the ways we trick other countries into thinking that we are a good country.

0:45:14.7 Michael: Right. This is something that the rest of the world thinks is one of the more admirable things we do in this country and have tried to model their own law enforcement on it. And yet, there's actually been this long campaign against it and it's been very quiet. It's like flown under the radar. And meanwhile, judicial activism has become a dirty word. But Miranda is unquestionably an activist decision.

0:45:47.2 Rhiannon: Sure. Yeah, yeah, definitely.

0:45:51.1 Michael: It's very aggressive. It's laying out all these rules, new procedures for cops to follow. This is not like a narrow thing deciding the case before. They're saying every case going forward has to follow these specifications or its suspects. And I just think the left needs to think very differently about the courts and how we communicate about them. And I think Miranda and Berghuis are like a great example of that, and the blind spot we have about these things.

0:46:22.6 Peter: Maybe on that note, it might be worth mentioning that this case is effectively between Michigan, the State of Michigan and Tompkins. But guess who joined the case on Michigan side, on the cop side? The United States of America. Barack Obama's Department of Justice thought it would be a worthwhile use of federal resources to join this case on the side of the cops. This is a notably more hostile position toward Miranda rights than any Democratic administration. And Michael mentioned the statute attacking Miranda in 2000. The Clinton administration was pretty vocally opposed to that. So we're talking about a sort of reactionary project to attack Miranda. Guess whose side Barack Obama was on? It goes to show how far the left has fallen on some of these issues, how much we lack a vocabulary on these issues, lack a political will at the grassroots and in these halls of power. And just a gentle reminder that Barack Obama kind of high key sucks. Just sort of absolutely... This is first term Hope and Change Barack Obama.


0:47:51.6 Michael: By the way, you know who was Solicitor General at the time?

0:47:52.6 Peter: Any guesses? Elena Kagan?

0:47:55.6 Michael: Folks.


0:48:00.3 Peter: Shortly before joining the court. I'm going to give her the benefit of the doubt based on her body of work and say that she was being forced by Barack Obama himself to do this, that the directive came down from on high. We may never know.

0:48:16.2 Jay Willis: Who this actually came from, probably is Eric Holder who was Attorney General at the time, and who had a background as a prosecutor in law enforcement, as a US attorney.

0:48:25.9 Peter: I do think it's worth talking about why conservatives think this way, why reactionaries think this way. And I think the obvious point is that they don't imagine that this is a right that they will ever need. And we've had that sort of conversation before.

0:48:42.0 Michael: I mean, you see it in the January 6th stuff where they get upset about...

0:48:47.7 Peter: Right. That is the example. When conservatives who view themselves as sort of functionally above the law, the people who the law protects, but does not bind, become exposed to the basic machinations of our criminal justice system, they immediately lose their fucking minds, they believe that they are being brutalized, just with basic pretrial functions, just being denied bond. Incredibly routine.

0:49:20.6 Michael: Having a gag order because you are making threats against the judge on social media.

0:49:26.6 Peter: All of these things that poor people who are arrested are exposed to routinely, when these people are exposed to it, it becomes a rallying cry. Donald Trump is out there talking about it, my beautiful, stupid friends are being treated like shit by the justice system and there basically isn't a single thing that is outside of the boundaries of the normal function of our court systems in those cases.

0:49:55.5 Rhiannon: Right, yeah, that's exactly right. And so that's what I'm saying, is we've talked about, where are liberals on these issues in this post-Miranda, in this decades-long poking all of the holes, death by a thousand cuts strategy campaign against Miranda? That brings me to this thing that I've been kicking around today, this phrase. It means a lot of different things when you're talking to abolitionists, when you're talking to anarchists. But a phrase that comes up is, "Kill the cop in your head." Maybe before I get to, kill the cop in your head...

0:50:29.5 Peter: Let's talk about [0:50:30.3] ____ folks.

0:50:33.4 Rhiannon: Nope. No, that's not what I'm saying. [laughter] What we do need to say, I think we've said it a couple of times, but let's be extremely fucking clear. Do not talk to cops. This case, Berghuis v. Tompkins requires you to say clearly and unambiguously that you will not answer any questions and that you wish to exercise your right to remain silent when you are dealing with the cops. You should be prepared to say that if you are arrested, you should be prepared to say, "I will not answer any questions. I am exercising my right to remain silent. I want to speak to an attorney," and that's it. That's all you say. Do not talk to them. Do not give them any more information. Do not answer their seemingly innocuous or innocent questions. Do not talk to cops.

0:51:24.1 Rhiannon: And I think maybe the majority of our listeners, I'm not really sure, maybe the majority of our listeners, they can expect that they really won't ever be in a situation with cops like this, where they're forced to answer questions. I'm telling you that you should be prepared no matter what, and that you should be telling your loved ones and telling people that they should be prepared to answer questions from the cops like this: "I will not answer any questions. I am exercising my right to remain silent. I want to speak to an attorney." It's the only thing that you should be saying to a cop when you are being interrogated, when you're in custody, period.

0:52:01.2 Peter: If that's too much, lawyer. One word, "lawyer." Lawyer.

0:52:04.3 Rhiannon: And that's it.

0:52:08.1 Michael: Somewhere, Anthony Kennedy's so mad right now.


0:52:13.7 Rhiannon: Which brings me to this idea, kill the cop in your head. I think that people, regular people, well-meaning people, we've talked about liberals, the Barack Obama administration being on the side of cops here. Because I think the argument is, "Well, we got this confession from the guy and we could use it against him. And I mean, yeah, he shot someone, so we're getting the bad guys. So, what is the problem if we talk to the guy for three hours, and at the end of the three hours, he says, yeah, he did it, and now we have a case open and shut, and he's convicted and we go about doing the work of public safety," or whatever the fuck they say. We have to take a step back and ask ourselves why we have internalized that messaging and accepted it as true, accepted it as effective. Let's just talk about the right to remain silent. Why do you have to invoke the right when you supposedly have it? Why, on top of that, does the right have to be verbally invoked? Why can't it be invoked by remaining fucking silent? Why, when it is verbally invoked, is it actually, courts say, "Ah, no, that's ambiguous. You didn't really invoke it. That's unclear." And someone who is invoking their own constitutional right, that they have to use these magic legal words that no one has ever said exists. Anthony Kennedy doesn't say what the words are.

0:53:33.4 Rhiannon: But ask yourself, talk to the cop in your head. Ask yourself, "Why don't the cops do that?" They do not respect your rights. They see your constitutional rights not as something that they have to respect and uphold, but as something that they need to get around. It is an obstacle in their way. And to make it as unclear as possible, so that when you or a loved one is interrogated by the cops, it is extremely unclear what you are supposed to do, even though you may understand, as most people do in this country, in the abstract, that you have important rights when dealing with the police. But when you say, "I don't wanna talk about this anymore, man," that's not an invocation of your right to remain silent. The police can keep talking to you. How fucking confusing is that? So in the moment, what the fuck are you supposed to actually do? Challenge the punitive logic that you've internalized.

0:54:26.7 Rhiannon: Challenge the carceral logic that you've internalized, challenge your acceptance that this is how police are allowed to act, because it catches bad guys. And challenge that with what might be a new understanding for you that this is in fact routine for them to violate your constitutional rights, and courts will accept this and allow it over and over and over again, because the police hold a monopoly on the only forms of legitimate violence, which is state violence. They're not catching bad guys. You know how they employ most of these interrogation tactics and break people down? It's my former clients who were accused of stealing diapers from Walmart, or stealing a sandwich from Walmart, or peeing on the side of the road when they're homeless, or a thousand other things. That's what they're doing, is breaking people down every single day, in violation of their constitutional rights. They do it routinely and normally, because they don't care about your constitutional rights. It's in violation of people's rights as free people. It's in violation of your rights too. If the police have the chance, they will absolutely do it. And it is through a vast system of mass incarceration that they guard that power, maintain it, and do it constantly.

0:55:41.7 Jay Willis: Michael, your point about sort of a lack of liberal imagination around issues like this one, I think there's a sharp contrast with Earl Warren in Miranda. It's not just speculative. He specifically asked his clerks to go through the cert petitions and look out for cases like this one that would allow him to create a new standard for cops informing suspects of their rights. He didn't parse the constitution's text with a fine-tooth [0:56:06.8] ____ comb or whatever, to figure out why he could do this. He was just like, "I am a person who can look at the criminal legal system and figure out how broken it is, and the standard needs to be different." One of six cool Supreme Court justices ever. I won't be elaborating further.


0:56:26.1 Peter: We've talked a lot about Miranda. We've talked about the ways in which police leverage the imbalance of power during interrogations, but it's important before we wrap to just circle back to how fundamentally fucking stupid this decision is. This is a decision that holds that remaining silent for hours on end is not an invocation of your right to remain silent. That is the sort of total fucking nonsense that... I said only a lawyer could find an issue here, and I think it's true. This is the complete bullshit that you need to be a lawyer to conjure up in your mind. And the fact that a group of five lawyers anywhere agreed with this decision, is preposterous, let alone that five of them were on the Supreme Court. This is the sort of decision that you read and then never take the institution of the Supreme Court seriously, ever...

0:57:35.0 Rhiannon: Exactly.

0:57:37.7 Jay Willis: Radicalizing. Good luck out there, folks.

0:57:41.1 Peter: Yep. Don't talk to cops. Jay Willis, I promised you an opportunity to pitch, so sell yourself. What are you up to lately?

0:57:49.1 Jay Willis: Yeah. I'm the editor of chief... Oh, goddamn it, I screwed it up already.


0:57:52.3 Peter: Jay Willis, folks. We'll be back next week.


0:57:56.2 Jay Willis: So I run Balls & Strikes. It is a website that dares to answer the question, what if legal punditry weren't fucking terrible? And it's my view that the site is pretty good. And legally, all of you have to agree with that 'cause you've all written for it, so you [0:58:16.8] ____.

0:58:17.4 Peter: True.

0:58:17.4 Rhiannon: That's right, yeah.

0:58:18.4 Michael: Yeah, that's right. It's true.

0:58:18.5 Rhiannon: You can find our bylines all over Balls & Strikes. It's a really good website.

0:58:20.3 Peter: It is. Jay Willis, thanks for coming on.

0:58:23.0 Jay Willis: Thanks for having me, guys.

0:58:26.1 Peter: We appreciate you and we're, of course, big fans of your work.

0:58:27.8 Rhiannon: Yeah. Thanks, Jay.


0:58:32.3 Peter: Next week, Geduldig v. Aiello, case from the 1970s. Is denying benefits to a person who is pregnant gender discrimination according to the Supreme Court? The answer will surprise you. [laughter] Or maybe not, if you're a listener of the podcast. Perhaps not.

0:58:55.9 Michael: Yeah, you might have an idea where this is going.

0:58:57.4 Peter: Follow us on social media @fivefourpod, to subscribe for premium episodes, ad-free episodes, access to special events and our Slack, all sorts of shit. We'll see you next week.

0:59:14.0 Michael: Bye, everybody.

0:59:15.7 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan deBruin. Peter Murphy designed our website, Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:59:44.2 Peter: Jay, of course, at the start of every Supreme Court term, starts sending us Venmo cash and requesting...

0:59:52.4 S6: He said Balls & Chips?

0:59:52.8 Peter: No, he said strikes.

0:59:55.7 Rhiannon: No, he said Balls & Strikes. [laughter]

0:59:55.8 Jay Willis: I did not. Different website, super different website. [laughter] Balls & Chips. Rachel having a stroke. [laughter] Let's leave that in.