Salinas v. Texas: Originalism vs. Judicial Policymaking

As I write, the United States Supreme Court’s term awaits the release of what will probably be watershed opinions on affirmative action, same-sex marriage, and the Voting Rights Act. These cases will receive — and rightly so — the lion’s share of media attention.

Nevertheless, there are always quieter cases that often starkly illustrate the Court’s divisions in the matter of constitutional interpretation. The June 17 decision in Salinas v. Texas is one such case. What is striking in Salinas is the lesson that the abandonment of adherence to original-understanding issues is mere judicial policymaking of one political stripe or another.

Suspected of murder, Genovevo Salinas had been brought into a police station for questioning. All parties agreed that he was not in custody and no Miranda warning was read. Salinas voluntarily answered police questions about the crime. However, when the police asked him whether ballistics testing would match the shell casings at the murder scene to his shotgun (which he had turned over to the police earlier), Salinas suddenly fell silent.

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 excrescence authored by Justice William O. Douglas. 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.

That is why originalism is so vital to the conservative project of restoring the Constitution. Without a rigorous analysis of the text and history of the constitutional provision, little more than results are at stake. And that is a constitutional jurisprudence that will not endure.

Gregory J. Sullivan ( is a lawyer in New Jersey. 

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