In these circumstances, the dissenters concluded, it was manifestly unconstitutional to allow prosecutors at trial to inform jurors that Salinas has failed or refused to answer that single question. Justice Breyer wrote:



To permit a prosecutor to comment on a defendant's constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances -- even if he is innocent. If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt.

And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as "a witness against himself " -- very much what the Fifth Amendment forbids.

Good news for jurors. Bad news for defendants. The lesson of Salinas is clear, and tracks a trend from this Court. Attributed to criminal suspects is a level of constitutional awareness few of them have. To conclude it was reasonable for Salinas to have stopped the interrogation, and explicitly invoke his Fifth Amendment rights under Miranda v. Arizona, is a fantasy in which the justices, conveniently, indulge. The real world, the world in which the police and suspects are at odds, cries out for clear judicial standards that presume the opposite -- that the Constitution works best when it protects those who need it most.

Alleyene v. United States

Compared to the Alleyene opinion, the Salinas decision was like a mash note. The only thing simple about the result in Alleyene was the holding itself. "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt," wrote Justice Thomas in an opinion joined by the Court's four liberal justices. Because Allen Alleyene had been given a seven-year sentence based upon the fact that he had "brandished" a weapon, a finding his jury did not make, the Supreme Court ordered him to get a new sentencing trial.

To reach this conclusion, however, the Court's majority had to overturn its 2002 decision in a case styled Harris v. United States and here's where the justices splintered apart. On the merits, there was the primary conflict between Justice Thomas and Chief Justice John Roberts over the role of judges, and jurors, in sentencing. For the majority, Justice Thomas wrote:

As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Wrong, wrote the Chief Justice. The Sixth Amendment was designed to protect defendants from the government, not to protect judges from legislators. "The question here is about the power of judges, not juries. Under the rule in place today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight -- so long as the sentence remained within the range authorized by the jury. Now," the Chief Justice wrote:

in the name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance.

There was little "respectful distance" between two other justices in Alleyene. Long after folks forget about this case and this ruling and the role of juries in criminal sentencing procedure they may remember the extraordinary exchange between Justice Alito and Justice Sonia Sotomayor over a case (Roe v. Wade) and a topic (abortion rights) that have nothing to do with the Sixth Amendment. The two justices scrapped over the concept of stare decisis -- the doctrine which posits that the Court should overturn its own precedent only in exceptional circumstances.