STARE DECISIS

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.