Wednesday, May 27, 2009


Or- "How to over rule precedent in five easy steps and on five dollars a day."
A treatise. By Antonin Scalia. Assoc. Justice. U. S. Supreme Court. 

Our last post dealt with the decision in Montejo v. Louisiana, and our belief that it represented the thin edge of a larger wedge created by Justice Scalia.  A wedge whose ultimate end is not the evisceration of the 6th Amendment right to counsel, but the prophylactic protections of Miranda and the 5th Amendment. 

Montejo overturned Jackson, and to overturn Jackson (and sleep at night) Justice Scalia needed to create some rules of constitutional construction vis a vis the whens, wheres, whys and how-tos in reversing a previous supreme court precedent. 

RULE ONE: A precedent can be reversed if it proves "to be unworkable" 

To the  contrary, the fact that a decision has proved “unworkable” 

is a traditional ground for overruling it.  Payne v. Tennes- 

see, 501 U. S. 808, 827 (1991). 

Well, to the extent that school desegregation has still proven to be difficult if not unworkable in many states and cities, there goes Brown v. Board of Ed. 

RULE TWO: The younger a precedent, the more it is fair game to be reversed. 

Beyond workability, the relevant factors in deciding 

whether to adhere to the principle of stare decisis include 

the antiquity of the precedent....

Korematsu v. US is in, and dare we say it...Roe v Wade stays as is, but Gore v. Bush is still up for grabs. Al may make it to the oval office yet. 

RULE THREE (and now the cat is out of the bag) A decision that is not "well reasoned" may be reversed. 

the relevant factors in deciding  whether to adhere to the principle of stare decisis include 

the antiquity of the precedent, the reliance interests at 

stake, and of course whether the decision was well reasoned. 

We imagine that the six justices who joined in the majority in Jackson believed the opinion was "well reasoned" when it was decided.   Stevens wrote  the opinion joined by Chief Justice Burger who concurred, and White, Brennan, Marshall and Blackburn.  Jackson was no 5-4 squeaker. 


But this is  Scalia, who decries jurisprudence by instinct, emotion,  or result (except when his ox is gored).  Beyond Scalia saying the decision was not well reasoned, there is nothing to support his contention. Scalia  rarely if ever cites to the language of Jackson.  And as even Scalia points out, for the last 23 years police and prosecutors have been trained in the holding in Jackson and have managed for the most part to live within it's dictates. Indeed, 6th amendment litigation on this issue can not really be called confused or unworkable. There was what appeared to be a bright line rule, and the lower court decisions are uniformly applications of the rule to the facts of the individual cases before the court. 

How does Scalia attack the reasoning of Jackson? Not by the words of the case. Nor by logic. As we wrote yesterday, it is Scalia the collectivist who is at work here. And despite the protestations of my brother blogger Mr. Markus, Scalia is no friend of the individual when it comes to society and the rights of the accused. 

RULE 3A: Well reasoned means "cost/benefit analysis":

Which brings us to the strength of Jackson’s reasoning. 

When this Court creates a prophylactic rule in order to 

protect a constitutional right, the relevant “reasoning” is 

the weighing of the rule’s benefits against its costs.  

(Rumpole: so "reasoning" doesn't mean logic. It means a cost/benefit analysis. Just where in the federalist papers does this definition of reasoning arise?) 

“The value of any prophylactic rule . . . must be assessed not 

only on the basis of what is gained, but also on the basis of 

what is lost.” Minnick, 498 U. S., at 161 (SCALIA, J., dis- 

senting). We think that the marginal benefits of Jackson 

(viz., the number of confessions obtained coercively that 

are suppressed by its bright-line rule and would otherwise 

have been admitted) are dwarfed by its substantial costs 

(viz., hindering “society’s compelling interest in finding, 

convicting, and punishing those who violate the law.

Note who Scalia cited to: Scalia (in dissent no less). And remember what I wrote yesterday: Scalia wrote Montejo to create rules of construction that will at some later date give him the opportunity to reverse Miranda. 

RULE FOUR: Does the right have other big brothers to protect it? 

Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason  to retain its rule. Miranda and the cases that elaborate 

upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as “voluntariness with a vengeance,” 384 U. S., at 505 (dis- 

senting opinion).  There is no need to take Jackson’s further step of requiring voluntariness on stilts. 

This is the "don't worry this won't effect you one bit" theory of constitutional law. As Scalia sees it, Jackson addressed a problem: coerced confessions. Since the issue of coerced confessions are adequately covered by Miranda and the 5th amendment, who needs Jackson? Space is at a premium and Jackson was taking up space- so out it goes.

So there you have it- how to overturn precedent in four easy steps. 

One einy, weeiny, teeny tiny problem:

“The philosophy of a living constitution -- which means it doesn’t mean what the people agreed to when they adopted it -- is a very seductive theory. It’s seductive for judges because it empowers them. It’s seductive for law professors because it lets their imaginations run wild.”

Antonin Scalia- speech to the Federalist society, November 25, 2008. 

Rumpole wonders: just where did these four rules for overturning supreme court decisions come from, if not the empowered imagination of a certain Supreme Court Justice?  You certainly can't find those rules in the constitution, or the federalist papers, or in any case I've ever read. 

Don't worry Nino- Ralph Waldo Emerson wrote that "a foolish consistency is the hobgoblin of little minds"

Coming next: For Sale: One soul, along with pride and intellectual honesty. Contact Sam Alito. Financing available. 


Anonymous said...

You have about 20 iq points on your brother blogger.

Anonymous said...

OMG like wow, how completely boring can this blog be?

Anonymous said...

Actually, I appreciate the legal commentary. You're a much more enjoyable read than most. And, while I don't always agree with you, appreciate your insights. Keep it up Rump.


Anonymous said...

This post is too long zzzzzzzzzzzzzzzzzz

Anonymous said...


Anonymous said...

thanks for the well thought out analysis. Very interesting

Anonymous said...

Were I in a legislature, I would vote to allow abortions (under reasonable restrictions), would seriously consider doing away with the death penalty, seriously consider legalizing most controlled substances, and would try to find a way to stem firearm violence.

That being said, I find Scalia's constitutional views infinitely more acceptable than those of Brennan and his ilk and progeny, to wit: If I don't agree with the legislature, then it's unconstitutional, and I'll find a way to make it so.

William Brenann was the most arrogant and dangerous man of the 20th century in America; people just don't have the perspective to realize it yet.

Anonymous said...

Note to 2:50 a.m.:

Can't you think of something more interesting to do at 3 in the morning other than checking our the Blog?

Anonymous said...

Well, we are seeing the results of Obama's middle east "Listening Tour" and his appeals to his "Moderate Talaban" buddies. Great vision Barak. "Moderate Taliban", who knew. The anointed one is either naive or a radical muslim sympathizer. Frontline had a show this week about the carnage the Taliban is inflicting in Pakistan. There was no mention of any "Moderate Taliban" factions. Afganistan/Pakistan is Obama's war. He called for the Afgan surge. We will see how his "Moderates" embrace "Yes we can."

Anonymous said...




Death penalty consequences

Florida's flawed system should be abolished

There are many ways to make the case for abolishing the death penalty in Florida.

First, consider the extra $50 million that the state spends each year on death-penalty prosecutions and appeals.

Then look at the deep flaws that the American Bar Association found with Florida's system of capital punishment -- and recognize that those legal inequities haven't been addressed in the three years since the Bar released its review.

Finally, consider the haunting probability that the state has executed innocent people -- mistakes it can never correct.

The last argument is the one that torments former Florida State Penitentiary warden Ron McAndrew, whose duties included participating in the executions (by electrocution) of three men during his tenure at the prison. In an opinion piece written for the Orlando Sentinel's online edition, McAndrew describes a gradual change of heart that culminated in a face-to-face meeting with Juan Melendez, a man who spent more than 17 years on Florida's death row before being proved innocent of a 1983 murder.



Cap Out ....

Anonymous said...

I liked this post.

Anonymous said...

You feel the same way I suppose about Dred Scott?

Batman said...

My first comment from the decision is - the poor police officers, how would they know if the Defendant, whom they have just arrested and tendered to an initial appearance, would have had the Court appoint counsel? Of course it is the burden of the Defendant to show they did know, even if the defendant was not present and the appointment was automatic, which of course, the police would never know is automatic.

I'm sorry does it sound like I am dizzy from being lead in a circle around this point? If the procedure of the state in question is to automatically appoint counsel, then the police, the prosecutors and everyone else attached to the criminal justice system knows.

If one erases this farsical distinction upon which this whole decision is based, then Jackson is still applicable to this situation. So now the defendant, probably the least knowledgeable of all the participants, is presumed to know everything and the police, who are probably the most knowledgeable of all the participants through the 1st appearance stage, are presumed to know nothing.

Next Scalia ignores the Code of Professional Responsibility which places upon prosecutors the duty of never approaching a defendant to obtain a waiver of counsel once counsel has been appointed or appeared. So now the idea that the police are an extension of the prosecution and therefore their actions are binding upon the state can go by the wayside.

As it has stood in the past, unless the defendant, acting affirmatively, reached out to the police (say in an attempt to cooperate on his own), if the police wish to talk to a represented defendant they had to inquire through the prosecutor or directly to counsel. Clearly, even in the face of Jackson, that is no longer the rule. The prosecutor may now turn a blind eye to the actions of the police with a wink and a nod and go behind counsel's back.

This opinion is more of a riddle than The Riddler ever sent me.

Okay, I have to stop now. When the nausea dissipates, I will read more and comment.

Alfred bring me an Alka Seltzler.

the trialmaster said...

A sad day for all trial lawyers. P.J.Carroll has passed away after a long bout with prostate cancer. PJ will be missed. He was a great guy and enjoyed life. A fixture at La Gorce and a golf course legend. He joins Gerry Pyska in resting in peace. The old guard is slowly dying out. I will miss PJ, a great trial lawyer.

Anonymous said...

"Montejo is going to die because he remained mute at his preliminary hearing"

No, Montejo is going to die because he is guilty of murder. I understand not agreeing with the decision, but lets take it easy on the "poor Montejo" angle.

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