The slim majority concluded that it is not enough for criminal suspects to remain silent to invoke their right to remain silent; they must speak up to do so. Writing for the majority, Justice Anthony Kennedy said that suspects must tell interrogators that they want to remain silent before their rights are raised.
"So police officers may now interrogate detainees for hours on end - no limit is suggested by the court - and so long as the detainee does not use the magic words that expressly indicates a refusal to answer questions or the desire for an attorney, any words uttered - no matter how few - may be used against him," Ifill writes in a post for The Root.
Unlike former Supreme Court Justice Thurgood Marshall, none of the current Supreme Court justices have experience defending criminal suspects. So, Ifill notes, it is "ironic that the strongly worded dissent comes from Justice Sotomayor - a career prosecutor." Yet Sotomayor's "hands-on experience with criminal prosecutions, fully on display in her real-world understanding of the pressures of interrogation in custody and the incentives of police that she articulates in her dissent, demonstrates the importance of having justices on the Supreme Court whose practical experience can inform the court's approach to criminal cases."
But the decision reflects a troubling trend in the legal profession, Ifill concludes:
The highest echelons of the legal profession have been dominated by former prosecutors. There are currently three former prosecutors serving on the Supreme Court (Sotomayor, Samuel Alito and Stephen Breyer). Justice Marshall is the last Supreme Court justice who devoted a large part of his practice to criminal defense work. Criminal defense attorneys are almost never included on Supreme Court shortlists, despite the fact that some of the most prominent and accomplished lawyers in the profession, like Bryan Stevenson, have devoted their lives to defense work.