Let's talk about stare decisis on the Warren Court

Gorsuch: "The dissent may prefer decisions within a particular 30-year window."

Edward v. Vannoy is a fascinating case. It reveals raw fractures on the Court between Justice Kagan and Justice Kavanaugh, and I would add Chief Justice Roberts. However, perhaps the most tiring aspect of the case is the caterwauling about stare decisis. At this point, Justice Kagan needs to prepare a macro. Her copy-and-paste dissents about precedent are repetitive. She has made her point, and can only repeat it over and over again.

Still, I thought Justice Gorsuch had a poignant response. Last year, I joked that stare decisis is an old Latin phrase that means "Let the decisions of the Warren Court stand." Gorsuch seems to agree. He wrote:

The dissent criticizes today's decision as a departure from modern habeas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dissent's history is selective. The dissent champions decisions from the 1950s, '60s, and '70s. But it disregards how those decisions departed from a century of this Court's precedents and the common law before that. Supra, at 5–8. At the same time, the dissent's account overlooks this Court's precedents refusing to afford retroactive application in every case since the 1980s. Post, at 10–11; post, at 12, n. 7. The dissent may prefer decisions within a particular 30-year window. But it is too much to say this preference is required to "[r]espect[] stare decisis." Post, at 1, n. 1.

Justice Kagan and her colleagues are keen to extoll the precedents established by the Warren Court. But left unsaid is how those decisions had zero respect for precedent.

Randy and I have added a chapter on Criminal Procedure for the 4th Edition of our casebook. In the process, I re-read many of the leading Warren Court CrimPro decisions. And I approached these cases from the perspective of constitutional law, rather than the nuances of law enforcement. I was struck, over and over again, at how willy-nilly the Warren Court nullified precedents. There were no discussions of reliance interests. In some cases, cases were overruled in footnotes, almost as an afterthought. Consider a few examples.

Mapp v. Ohio overruled Wolf v. Colorado. In that case, the defendant did not ask the Court to overrule the case, but an amici did! Today, amici are invited to defend precedents. But in the 1960s, amici were invited to attack precedents. The Court explained the posture in a footnote.

Other issues have been raised on this appeal but, in the view we have taken of the case, they need not be decided. Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf.

Justice Harlan's dissent lamented this lack of "judicial restraint"

In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled

The legend of Gideon v. Wainright is well known. The Court appointed Abe Fortas to represent the famous prisoner. And the Court "requested both sides to discuss in their briefs and oral arguments the following: 'Should this Court's holding in Betts v. Brady be reconsidered?'" Again, the Court was champing at the bit to overrule a longstanding precedent.

Miranda v. Arizona overruled two precedents in Footnote 48. There was no discussion of stare decisis:

In accordance with our holdings today and in Escobedo v. Illinois, Crooker v. California (1958) and Cicenia v. Lagay (1958), are not to be followed.

Katz v. United States famously overruled Olmestead v. United States. Katz found that the "underpinnings" of Olmstead "have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling." The word stare decisis does not appear in the decision.

Justice Black regretted this decision in dissent:

It is the Court's opinions in this case and Berger which, for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversations can be "seized."* I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment.

And so on.

Why should the decisions of the Warren Court get stare decisis value, when the Warren Court gave so little deference to earlier, long-standing cases? Justice Kagan's preference to stare decisis should extend to cases that Justice Brennan did not join.

One final note on Vannoy. Justice Kagan uses the word pre-butting:

On the last page or so of its merits discussion (before it turns to pre-butting this dissent), the majority eliminates the watershed exception, declaring it "long past time" to do so.

I checked. First time the word appears in any federal case. I love it.