Wednesday, June 27, 2007

Dellinger on over-ruling sotto voce

Slate Magazine:
The end-of-term conflict among the majority this year is not over what the right rule should be, or even about whether to abandon the prior, less conservative, decision—it is over precisely how to go about overruling prior cases. That is a pretty refined division.

Chief Justice Roberts and Justice Alito—perhaps recalling their recent confirmation encomiums to stare decisis—have apparently decided to overrule cases without saying they are overruling them. Justices Scalia and Thomas often won't go along with that move and thus write separately to say that the earlier cases should be explicitly repudiated. Justice Kennedy has gone both ways this week. The result is that the five justices in the majority break into two opinions, one of which would explicitly overrule a prior case and the other of which would leave it half-dead and unable to procreate. Scalia and Thomas would come clean and invoke the magic phrase 'X is hereby overruled' while Roberts and Alito avoid the O word and say things like, 'We leave Flast where we found it.'"...

But it's neither minimalist nor restrained to overrule cases while pretending you are not. There can also be a significant cost to the coherence of the system to have a precedent that is really indistinguishable in principle from new cases that go "the other way." What are lower-court judges to do when the earlier case is cited? How are they supposed to reconcile the conflicting results?


Dellinger concludes by stating his preference for the Scalia position.
Is that where we have got ourselves to? G!d help us.

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