on Jan 31, 2011 at 5:59 pm
In a recent article in the Georgetown Law Journal, Professor Barry Friedman criticizes the Courtâ€™s practice of â€œstealth overrulingâ€â€”which he defines as opinions that change the law without explicitly overruling existing precedent.Â Â To illustrate the point, Friedman cites theÂ Courtâ€™s recent decisions eroding the foundations of Miranda v. Arizona, though he notes that the practice is not unique either to that subject area or to the Roberts Court.Â Friedman argues that stealth overruling obscures the true import of the Supreme Courtâ€™s decisions and enables the Justices to evade the negative publicity that would follow from expressly abandoning precedent.Â InÂ his 2009 book, The Will ofÂ the People,Â Friedman built a strong historical case for the proposition that the supposedly â€œcountermajoritarianâ€ Supreme Court rarely deviates far from mainstream preferences.Â Stealth overruling would undermine the feedback loop he observed between the Court and public opinion.Â Further reaction to Friedmanâ€™s article can be found here and here.
In an essay recently posted on SSRN, Professor Rick Hasen observes that the Court has subtler methods for shaping the law than express (or stealth) overruling. Â For example, he argues that the Court engages in â€œanticipatory overruling,â€ in which it signals its intent to strike down a law or change a precedent in the future.Â Dicta can also serve to shape future decisions.Â In addition, the Justices sometimes invite litigants to challenge existing precedent, or suggest that Congress take action to overrule precedent or amend constitutionally problematic statutes.Â These techniques shape the law and lay the groundwork for changes to come without drawing too heavily on the Courtâ€™s political capital.Â
Most interesting to me, Hasen speculates that Justices may inadvertently move the law by misstating existing doctrines.Â We may never know for sure when the Court is consciously trying to push the law in a new direction and when it inadvertently recharacterizes it, butÂ Court-watchers are probably too quick to assume intentionality behind every minor deviation from standard formulations.Â Hasen observes that even suchÂ errors are not necessarily random, however, since they may reflect what the Justice assumes or hopes the law to be.Â (Though I would add that errors are most likely to occur in those areas that Justices care the least about, and thus pay the least attention to.)