Let's talk about stare decisis on the Warren Court

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

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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.

NEXT: Justice Kagan Skewers Justice Kavanaugh's "Scorekeeping" through Virtue Signaling

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  1. On this, your third wee-hour post, you’re losing perspective on what is substance and what the Court does in the real world. Go to sleep, Josh.

    1. Did you have anything remotely topical to say, or are you just incoherently attacking Conspirators and their posts?

      1. Josh, bleary-eyed at 2:30 a.m., writing his third post in as many hours, loses sight of what the Court was doing. Next, we’ll hear about how the Warren Court in Heart of Atlanta Hotel didn’t give due deference to the stare decisis effect of Plessy, or how in <Brown it didn’t give due deference to Dred Scott.

        1. Josh, bleary-eyed at 2:30 a.m., writing his third post in as many hours, loses sight of what the Court was doing. Next, we’ll hear about how the Warren Court in Heart of Atlanta Hotel didn’t give due deference to the stare decisis effect of Plessy, or how in Brown it didn’t give due deference to Dred Scott.

    2. This, from the guy who breezily told us a few days ago he routinely blows off court-ordered deadlines. I for one am hanging on your every word for your next sage thoughts on legal practice.

      1. Go to the Jury Coordinating Part in Kings County Supreme Court before you say anything further.

        A couple of years ago, trial was set for Sept. 18. Our motion for s/j was denied on Aug. 20. On Aug. 22 we perfected the appeal and moved for a stay of trial pending disposition of the appeal. Plaintiff’s counsel opposed, saying he would be prejudiced by the delay. Motion for a stay denied. On Sept. 18 he showed up in the Jury Coordinating Part and said he wasn’t ready for trial. Case taken off the calendar. This kind of stuff happens all the time.

        1. Another example: I represent plaintiff in a property damage case where the date for my client’s deposition has been set in court orders four times. The fourth time will be next week and it’s not going to go then either.

          1. Dude’s just trying to get you for following the flow of traffic and not the speed limit.

            He’s just trolling with what little he has.

            1. Don’t insult him. I’m waiting for his update on the Arizona election audit he berated some here for mocking.

  2. In what language is the phrase stare decisis? The entire decision is void.

    The Court reverses itself about 1-2% of the time. If one is wrong most of the time, that fraction is actually too low.

  3. Given that liberty is a fundamental right, decisions that expand liberty ought to be accorded more deference than those that don’t. Liberty should be the default.

    1. Does Shapiro v. Thompson count as a defense of liberty?

      1. Yes. Why wouldn’t it?

        1. For one thing, it involved a supposed right to collect full welfare benefits from a state as soon as you crossed state lines, regardless of residency requirements. What of the liberty of those footing the bill?

          For another thing, Chief Justice Warren himself dissented from this Warren-court decision, indicating that maybe there was a Dr. Frankenstein problem, not a victory for liberty.

          1. Suppose the decision had gone the other way and the plaintiff decided to remain where she was so as to continue collecting welfare benefits. How is the liberty interest of those footing the bill in her original state of residence any less impacted than the liberty interest of those footing the bill in the new state?

          2. Most policies that enhance personal liberty also make it harder for the state to do its job. Just think how much easier it would be to lock up murderers if not for that pesky Fourth Amendment. And likewise, yes, allowing the Shapiro plaintiff to move to a new state and begin collecting benefits does place a burden on the state. The question is whether that burden is worth restricting her ability to freely move from one state to another. As with the Fourth Amendment, I would say the burden on the state is worth paying because her liberty interest is greater.

            1. The question of whether to immediately pay full welfare benefits to a new migrant seems more of a policy issue than a matter of fundamental human rights.

              If it’s so obviously a benefit to liberty, why did Earl “Dr. Frankenstein” Warren try in vain to side with the government?

              1. While I generally agree with most of Earl Warren’s jurisprudence, he personally is not the standard. Nobody is right all the time. I think he got it wrong in Braunfeld v. Brown too.

                It’s partially a policy decision, but the fundamental liberty implication is whether there can be second class citizens. Once you have taken up residence in a new state, with the intent of remaining, you’re a citizen of that state. I remember many years ago moving to Louisiana and being annoyed when I was told I couldn’t get a library card until I’d lived there for six months. Is there a fundamental right to a library card? Probably not. But there is a fundamental right to have the same rights as other citizens of the state.

                1. “the fundamental liberty implication is whether there can be second class citizens”

                  OR…the fundamental liberty implication is whether a person can be taxed for something neither (s)he nor his/her elected representatives agreed to.

                  It depends on how you define liberty. The Warren Court was good when it came to criminal suspects being able to invoke the Bill of Rights against the states. But when it came to property ownership, going by this case the justices seemed more worried about protecting the recipients of taxpayer bounty than protecting the rights of property owners.

                  1. And I suppose you’re going to mention taxpayers not agreeing to integrated schools, to which I reply that race discrimination is a special case, not a model on which to make everyone else in the world a protected category.

                    In any case, the real impetus for school integration came after Congress (democratically) decided to fund only integrated schools.

                  2. Once the legislature decides to fund something it can’t create different classes of citizens.

                    1. I don’t think it’s nearly as absolute as that.

                      It depends on the reason for differentiating among recipients of the money.

                      Racial or political discrimination? Bad.

                      But residency requirements for getting welfare? You’ll need more than a story about library cards to show that there’s a constitutional problem with that.

                    2. The legislature could constitutionally abolish welfare altogether. What it may not do, once it has decided to have welfare, is to have different classes of citizens for something that impacts on their ability to meet basic needs. Nobody goes to bed hungry if they have to wait six months for a library card.

                    3. To be fair, you and not I first brought up library cards.

                    4. And wouldn’t people “go to bed hungry” if welfare was abolished altogether? Yet you seem to think it’s constitutional, and I concur (from the standpoint of the *federal* constitution, at least).

                    5. Abolishing welfare would be bad public policy but it would not be unconstitutional. However, so long as we have welfare, the bottom line is you can’t have second class citizens.

                    6. I’m afraid we’re moving around in circles.

                      The government makes all sorts of distinctions. Some of these distinctions are invidious, like discriminating by race or politics.

                      Sometimes citizens have to wait before exercising their rights. Naturalized citizens have to wait a few years before being eligible for Congress. Native citizens have to wait until a certain age. And wait for a lower age to be able to vote, not to mention driving, or getting an adult library card.

                      The waiting is the hardest part, but does that make it unconstitutional?

                      https://www.youtube.com/watch?v=uMyCa35_mOg

                    7. And I’m saying you look at the harm that’s caused by making people wait. The greater the harm, the more likely the distinction is unconstitutional.

            2. “The question is whether that burden is worth restricting her ability to freely move from one state to another.”

              How could that be, when the policy in question doesn’t bar her from moving from one state to another? I’m not saying she shouldn’t prevail, but that would be a silly basis for her to prevail on.

              1. Because of the practical consequences of moving.

    2. Agreed as a general principle. In practice, however, there is often a notable absence of consensus over which direction a decision must go to “expand liberty”.

      1. In some cases, though, it ought to be pretty obvious.

        For Double Jeopardy, for example, it shouldn’t matter if a City, a State, and the Feds all have laws against a particular crime. There should be only one trial for one crime.

        Similarly, States shouldn’t be able to confiscate property to give to businesses because it might produce greater tax revenue, and there should be no such thing as civil forfeiture.

        The things the Supreme Court has held as Constitutional over the decades boggles my mind!

  4. Airy conceptual tu-quoque based attacks on the Warren Court is good times, so long as you don’t really go into the cases you want to overturn.

    Incorporation of the Bill of Rights to the States
    Racial segregation
    Sex discrimination
    Anti-miscegenation laws
    Right to counsel
    One person one vote
    Contraception
    Public school prayer
    The 4th Amendment not just being personal property

    And more I can’t recall this morning.

    You’re just yelling about modernity, but don’t want to really talk about what parts of modernity you have a problem with.

    1. Was thinking the same thing…what was overturned.

    2. My chief complaint mostly is not the items on the menu, (Though I’d take issue with some of them.) but the whole idea of using an oxymoron like ‘substantive due process’ to treat the Bill of Rights like the proverbial Chinese menu, the Court ordering incorporation ala carte. Incorporating the rights it liked, leaving Slaughterhouse in place for the rights it disfavored.

      1. Your issue seems to be a Chinese menu of rights and jurisprudence you favor just as much as the Warren Court did.

        Our jurisprudence is not laid out in one single swoop. As such, it’s not going to be elegant or harmonious or even intellectually consistent when taken as a whole.

        But what it will be is functional and limited to cases and controversies.

        1. The 14th amendment was ratified in one single swoop. And gutted in another. Is it absurd to think the Court should have overturned the Slaughterhouse cases, instead of creating work-arounds for the amendments it liked?

          1. Except it clearly wasn’t gutted – you’re angry about it’s employment right now!

            I’m not going to defend the Slaughterhouse Cases, in retrospect they don’t make a lot of sense. But that doesn’t make it less crazy to decide to tear down our current judicial institution to get at them. That’s not how the system was designed.

            For that, you’d need a legislature.

            1. “Except it clearly wasn’t gutted – you’re angry about it’s employment right now!”

              God, what a stupid remark.

              The 14th amendment was rendered a nullity for 81 years, and took decades more to restore piecemeal. If that’s not gutting it, what would be?

              And, no, I’m not mad about the 14th amendment being employed. I’m mad about it being partially employed in a warped manner, because the Court didn’t have the guts to just say an earlier Court had gotten something completely wrong.

              1. So you’re angry about the 81 years before the Warren Court?

                I don’t understand your thesis still – are you unhappy we don’t have an intellectually pure body of jurisprudence, being built on some clearly wrong rulings?
                Because as I laid out above, that is not in the cards for *any* body based on adjudication.

                It’s definitely not worth overturning the current institution just to make it pretty for you.

                So then what’s the *practical* upshot? What cases are you eager to have come out differently because we cite the words ‘P&I’ and not ‘SDP?’

                1. I’m certainly more angry about the 81 years before the Warren Court, than I am about the Warren Court; The Warren Court was a common cold to the Slaughterhouse Court’s Ebola. Bad, but not relative to what came before.

                  I don’t see why the Court couldn’t have the intellectual and legal honesty to have just come out and said that the Slaughterhouse cases were “wrong”. Instead of overturning what was the worse judicial outrage since Dred Scott, they kept it in place, and created a bullshit work-around that warped our constitutional jurisprudence. “Substantive due process” is a joke.

                  “So then what’s the *practical* upshot?”

                  That’s easy enough. First, no partial incorporation, 1-8 clearly and fully incorporated, not even an open question. Because ‘substantive’ due process is judge created, the content is also judge created, which is why we got partial incorporation.

                  Second, while everybody in the US is entitled to due process, only members of the people, basically citizens and permanent legal residents, are entitled to privileges and immunities. That’s a pretty big difference.

                  Substantive due process is easily distinguishable in several ways from privileges and immunities, but these are the most significant differences.

                  1. I’m not sure I would incorporate the Seventh. Jury trials for every twenty dollar dispute? Small claims court is unconstitutional?

                    1. Give me a principled argument for not incorporating it. One that is a legal argument, not whether the amendment itself was a good idea.

                      $20 isn’t a problem for originalists. Check out the Coinage Act of 1792: A “dollar” was legally defined as a coin containing “three hundred and seventy-one grains and four sixteenth parts of a grain of pure … silver.” That’s 0.85 ounces, silver is currently $28 an ounce, so you only get a jury trial where $476 fiat ‘dollars’ are at stake.

                    2. Check out the Coinage Act of 1792: A “dollar” was legally defined as a coin containing “three hundred and seventy-one grains and four sixteenth parts of a grain of pure … silver.” That’s 0.85 ounces, silver is currently $28 an ounce, so you only get a jury trial where $476 fiat ‘dollars’ are at stake.

                      This kind of arcana is not making the case for the simple intellectual force of originalism. It’s neither publicly accessible nor
                      a predictable or fully determined result.

                    3. Brett, one of the areas in which you and I differ is that I think it’s entirely reasonable to look at the bottom line result. There is an originalist argument for private ownership of nuclear weapons — one of the purposes of the Second Amendment is that the people are entitled to protect themselves from the government, so if the government can have nuclear weapons, so can private citizens. And if that argument were to be raised in a case, I think the court would be entirely within its right to say, the requested relief is nuts and I’m not going along with it. The Supreme Court is not the Mad Hatter’s tea party.

                      If you want a principled argument for not incorporating it, where is the federal interest in a twenty dollar dispute between citizens of the same state?

                    4. “where is the federal interest in a twenty dollar dispute between citizens of the same state?”

                      In the 14th amendment, which bound the states to obey the Bill of Rights.

                      A lot is riding here on the sense that $20 is a trifling sum. At the time the 7th amendment was written, adjusted for inflation, $20 was about $600 today, not a trifling sum, perhaps a third of your entire year’s income at the time, because incomes were lower relative to prices, too. So, $20 was not intended to be a trifling sum, but instead a substantial amount of money.

                      The textualist would ignore inflation, the originalist would attempt to account for it. Neither would declare the amendment non-binding on account of being a bad idea.

                    5. Originalism trumping text is a tricky act to balance.

                    6. Brett, the problem you have is that you are trying to find an argument in which $20 means something other than what the text very clearly says. If you want to do that, fine, but don’t then blame liberals when they do the same thing. (I’m not inclined to have a jury trial over a $600 dispute either. It would be far more cost effective for the clerk of the court to just write the plaintiff a check for $600 and tell him to go home.)

                    7. Not so much a matter of trumping it, as understanding it. Like I said, the dollar actually had a legal definition at the time, I would understand the amendment to incorporate that definition by reference. So, $600 today isn’t a number just pulled out of my ass, it’s the modern value of what that amendment specifies.

                      The Constitution requires you to be 35 years old to be President or Senator. Could Congress redefine the word “year” to mean “200 days” to give 19 year olds the right to be President?

                      No, originalism, even intelligent textualism, relies on the meaning words had at the time the document was written.

                    8. But the text doesn’t say the modern meaning of what the word specifies. It says twenty dollars. And I’ll bet you twenty dollars that if you could somehow poll the framers and ask them if they understood it to mean twenty dollars adjusted for inflation, they’d say no. Of course both of us are just speculating since they aren’t here to ask, but why should your speculation be any better than mine?

                      I don’t mind you using creativity to achieve the desired result. I do mind the double standard of you complaining when liberals do the same thing. Though with liberals it’s a far simpler analysis; we go with what words are understood to mean today and not what they were understood to mean then. A 21st century Constitution for a 21st century country.

                    9. “And I’ll bet you twenty dollars that if you could somehow poll the framers and ask them if they understood it to mean twenty dollars adjusted for inflation, they’d say no.”

                      Doubtless true. They’d have said that they understood it to mean the value of 20 coins consisting of “three hundred and seventy-one grains and four sixteenth parts of a grain of pure silver.”

                      That what we today call “dollars” are dramatically less valuable than the coins the word constitutionally denotes is just a predictable consequence of our having adopted a fiat currency, itself an act of dubious constitutionality.

                    10. They’d have said that they understood it to mean the value of 20 coins consisting of “three hundred and seventy-one grains and four sixteenth parts of a grain of pure silver.”

                      The textualist argument would be that if they wanted to specify a fixed amount, the Founders certainly knew how to do so. But instead they used the dollar, which they well knew could fluctuate.

                    11. “But instead they used the dollar, which they well knew could fluctuate.”

                      They did? Any evidence of that?

                    12. “They did? Any evidence of that [ie, that the Founders would expect the dollar to fluctuate]?”

                      I suspect that they didn’t expect it to fluctuate. It’s been a while since I saw a chart, but the dollar lost value slowly until about 1971, and then significantly lost value since then.

                      I don’t think the Founders had any idea what monetary policy might do to the dollar.

                      Whether that means that the 7th Amendment should hold fast to $20, or be adjusted to match inflation, is a different matter, to be sure. Regardless, the Amendment still applies to the Feds, and if it doesn’t adversely affect Federal cases, why would applying the Amendment to the States suddenly adversely affect them?

                      Then again, maybe the Amendment merely needs to be amended, to take into account inflation. Or perhaps we need to figure out a good monetary policy that doesn’t destroy the value of our savings.

                    13. “Regardless, the Amendment still applies to the Feds, and if it doesn’t adversely affect Federal cases, why would applying the Amendment to the States suddenly adversely affect them?”

                      How often is a twenty dollar dispute likely to end up in federal court? You need 75k to get diversity jurisdiction, and I can’t think of many federal questions only worth twenty bucks. Your typical small claims stuff is all going to be state.

          2. “The 14th amendment was ratified in one single swoop. And gutted in another. ”

            It wasn’t ratified. And it wasn’t gutted in Slaughterhouse either, IMO.

            1. I do understand the argument that it wasn’t legally ratified, but it absolutely was gutted.

    3. I’m curious about sex discrimination – what notable achievements did the Warren Court have in this area? (By achievement I’m talking in progressive terms about overturning state laws for being omg sexist)

      And there’s also the issue of welfare rights per Shapiro v. Thompson.

      And apart from welfare rights, which constitutional economic rights did the Warren Court show zeal in enforcing?

    4. “cases you want to overturn”

      Most of them.

      Incorporation of the Bill of Rights to the States
      Judicial power grab, no textual support. Making

      Racial segregation
      Brown was a no brainer early Warren before they went crazy, Civil Rights Act took care of it and later cases [“forced busing”] spoiled improving race relations

      Sex discrimination
      Civil Rights Act took care of it

      Anti-miscegenation laws
      Civil Rights Act took care of it

      Right to counsel
      Right to “free” but useless bottom feeding lawyers, big deal. We don’t buy guns or printing presses.

      One person one vote
      Totally made up

      Contraception
      Good policy maybe, inventing a right to “privacy” bad

      Public school prayer
      County was better with it

      The 4th Amendment not just being personal property
      ???

      1. Sorry, posted too soon.

        Incorporation of the Bill of Rights to the States
        Judicial power grab, no textual support. Making everything a federal question has been a political and social disaster.

        1. I’ve read some of the literature, and I think the privileges and immunities clause seems most plausibly read as a protection of certain basic recognized American rights, including those listed in the first eight amendments. Have you really enjoyed the privileges and immunities of an American citizen if you can be tried without a jury (or for serious crimes without a grand jury as well), if you can have your First or Second Amendment rights suppressed, or if you can lose such “unenumerated” rights as the right to earn a living?

          1. Agreed, and they were quite explicit about that being the purpose of the clause. Not everybody in Congress liked the amendment, but they seemed to agree what it meant.

            The lower courts immediately started applying it that way, too, until the Supreme court put a halt to it.

          2. ” those listed in the first eight amendments. ”

            Bingham’s words after the fact. But Bingham’s thinking has been described as “muddled” and it seems the rest of the 39th Congress didn’t agree with him.

            1. I’m focused on the language actually used – Bingham’s attitude is simply corroboration.

          3. “f you can be tried without a jury (or for serious crimes without a grand jury as well), if you can have your First or Second Amendment rights suppressed”

            State constitutions have counterparts.

            If they are listed as rights in the Bill of Rights [at least 1-8], they are not also “privileges and immunities” anyway. If the drafters of 14A wanted to incorporate the Bill of Rights, they should have done so.

            See how easy: “No state shall deny any person the rights contained in Amendments 1 to 10 to this Constitution.” Yet not done.

            1. Not done, because they didn’t mean to limit it to just those amendments, but instead EVERY right of a citizen, whether or not, (See the 9th amendment!) enumerated.

            2. “If they are listed as rights in the Bill of Rights [at least 1-8], they are not also “privileges and immunities” anyway.”

              Taney in Dred Scott said that P&I included free speech and the right to bear arms. Since the purpose of the amendment was to overturn that decision and give blacks the rights that the decision said they couldn’t have, it seems likely that P or I included the bill of rights.

        2. Bob, there is a pre-incorporation Supreme Court decision that since the takings clause didn’t apply to the states, Mississippi had no obligation to compensate someone before taking his land by eminent domain. All it had to do was to tell him to get off what is now state land.

          Sorry, I do not trust the tender mercies of state governments. Given their history neither should you.

  5. Five-in-a-row mean-girl style posts from Blackman. It’s going to take more than a mute button to get this blog back to its glory days.

    1. You know that you don’t have to read his posts, right? The byline is visible from the main page. You could just skip those.

      1. Rossami, I don’t like the effect Blackman’s mad-hatter-paced postings have. They suppress responses to others. EV makes a good post that deserves comments, but it doesn’t catch fire right away. Then Blackman does a multi-post dump that pushes EV off the screen with 2 comments. All Blackman all the time (and, for instance, no Kerr anymore), does not increase average quality for this blog.

        1. From my (liberal-libertarian American mainstream) perspective . . . the more Blackman, the better.

          Similarly, Orin Kerr’s disappearance is a welcome development.

          1. And thus your bigotry is on full display for all of us to see yet again!

            1. WelcomIng Josh Blackman’s writing is bigotry?

              Or is it recognizing the value of Orin Kerr’s judgment that is bigoted?

              Keep up the good work, clingers!

  6. I dissent — this is an interesting point that I’d never thought of before.

  7. The antithesis step in the dialectic thesis-antithesis-synthesis writing form is basically pre-butting. You are to anticipate objections to your thesis and pre-respond to them.

    1. You have to do that in situations where you don’t get a reply. For example, arguments in front of the jury, or the appellate court. With written submissions some courts don’t allow a reply.

  8. When a past decision is obviously not in line with Original Meaning – to hell with SD. As pointed out, past judges didnt care about preserving it, so why now? Obviously its just cover for keeping decisions that agree with their politics. Getting it right should be only thing that matters.

    1. Which decisions in particular would you like to get rid of?

      1. Lewis v United States

        Despite the 6th amendment’s guarantee of a right to a jury trial in “all” criminal cases, the Court has ruled that you can be put away for life without ever getting a jury trial, as long as they just hit you with a bunch of charges, and promise not to sentence you to more than half a year for each charge.

        1. Doesn’t seem to stand on anything regarding original meaning, but we can absolutely walk together on criminal justice reform.

          1. The original meaning of “all”.

            1. This took me down a fun rabbit hole.

              But it looks like the Court used original meaning analysis in Duncan v. Louisiana to find that not all crimes involving imprisonment required a jury trial.

              Lewis v United States seems to follow necessarily from that reasoning.

              1. The part about cumulative sentences in the case of multiple charges scarcely follows.

                A quick scan of Lewis v United States leaves me missing the reasoning behind not all crimes requiring jury trials. It seems to be just presumed. Could you point it out?

                1. Duncan is where you get the not all crimes requiring jury trials, and it goes back to England.

                  Based in the ‘Congressional intent’ analysis used, how can multiple independent lesser charges add up to a larger offense and retain the Congressional intent for it to be a minor charge?

                  1. I get that you’re saying it comes from Duncan, I’m just not seeing where Duncan actually says anything to support it.

                    1. we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.
                      https://www.law.cornell.edu/supremecourt/text/391/145.

                      It cites a bunch of cases, most of which seem exemplary. Duncan seems to be the first to set down the rule with the 6th incorporated against the States.

                      Pre-incorporation you have DC v. Clawans which says: “It is settled by the decisions of this Court, which need not now be discussed in detail, that the right of trial by jury, thus secured, does not extend to every criminal proceeding.”

                      The string site there goes back to the 1800s.

                    2. But where’s the original meaning analysis? The argument that “all criminal prosecutions” doesn’t mean “every criminal trial”?

      2. General principle, OM should always trump SD. When judges decide laws dont mean what was written, then we dont really have laws. The problem with OM is that it tends to limit govt power.

        1. ‘government’d be moar limited’ is not really a very rigorous response.

          I understand your academic thesis. (Though OM and SD are not really on a continuum).

          But if you don’t want to tilt at windmills, you need to look at the practical upshot of your pure idealism.

          1. Pure idealism? The upshot is we have unelected courts taking the place of legislatures. The longer it goes on the worse it gets. How long has it been since an amendment was passed? Why bother doing that heavy lifting, just invent a ‘modern meaning’ as a work around. So yes, I much prefer the ideal of – legislatures pass laws to fix problems, People amend the constitution as needed.

            1. Or put another way – SD is worthless without the foundation of OM. It just becomes replacing a past judges ungrounded personal opinion with their preferred ‘modern’ opinion.

            2. You continue to play coy with the actual changes.

              What are you angling at? Civil Rights? Freedom of Speech?

              The usual dodge that there is only originalism (as you define it, natch) or legal realism is just ignorant.

              1. “The usual dodge that there is only originalism (as you define it, natch) or legal realism is just ignorant.”
                I say its the non-originalists that play coy. Its a fact – there is only originalism and everything else should be labeled judicial activism. Yes, there can be honest disagreements as what is the most probable publicly understood original meaning – but everyone knows thats not really the real problem with it. The real issue for them is that its limiting.

                1. Yeah, you sure do know the real issue ze libs keep sekret.

                  Read up on some non-originalist jurisprudence, both modern and historical. Breyer has a book on it, and Opening Arguments has a pretty good podcast about it. But there are others – textbooks even!

                  But you’d rather not engage intellectually – that might take work. Instead, you just write fan fiction about how your preferred method is the only righteous one and everyone agrees with you but are too lame to admit it.

                  And again you don’t discuss anything about what current cases would change! You cannot operate in a realm of pure idealism. Well, I guess you can, but no one in the real world is going to find you very convincing.

                  1. “ze libs keep sekret” – intelligent response.

                    And there are plenty of books and podcast on Originalism out here in the real world. They have the benefit of making sense, intellectually and practically, but I get why you prefer alternative judicial activism.

                    1. I know originalism, and I think it has it’s place in Constitutional analysis, just that it is not the only method to be consulted.

                      You, on the other hand don’t seem to know, or care to know, it’s alternatives. Declaring they don’t make sense without actually bringing examples rather underscores your shallow opposition.

                      And from this discussion, you don’t even to care about the implications of originalism itself, really.

                      This is tribal stuff to you, and I would urge you to look deeper. You can be an originalist, but know what you’re talking about, and what people who don’t agree with you think.

                      Hint: It’s not ‘haw haw I’m not an originalist because I love judicial activism.’ That’s just you being silly.

                    2. I didnt say it is the only method, I said its the only proper method. It is the only one grounded in the truth and logic. Its the only one that keeps a check on judicial power. When people discuss and then agree to a law, that is the law and it has certain understood meaning. One unelected judge comes along and says it actually means something different – how do you pretend that is legitimate?

                      ‘haw haw I’m not an originalist because I love judicial activism.’
                      The simplest explanation to be against originalism is that it allows taking shortcuts around legislatures/amendments to your your preferred outcomes.

                    3. Just for fun, what are some of the other methods you have considered and rejected?

                    4. Outside of Originalism/Textualism I have yet to find another method that is objective and limits the judges ability to substitute their policy preferences for that of the People who wrote the law. It is illegitimate and stinks of arrogance and elitism. You brought up Breyer, his is as arbitrary as the rest from what I have seen and read.

                    5. KCar, little or none of the advocacy for originalism makes much sense, mostly because it is offered by folks who have not yet discovered that present-minded readings corrupt historical context.

                      Just like texts today, antique texts derived substantive import from lived context which shaped authors’ experiences. Problem is, American historical figures post-1700 used English syntax similar to our own, but relied perforce on historical context quite different than ours. Thus, there remains a vast contextual gulf between our era and disparate historical eras we wish to understand. Would-be originalists tend to ignore that gulf, or to pay it lip service which falls far short of insight.

                      The changes have been enormous. Almost everything in 21st century thought is more a product of occurrences post-1870 than it is of things which happened before then—and differences between the founding era and our own are yet greater.

                      Post-1870 occurrences in thought, politics, economics, law, technology, social mores, moral thinking, business practices, history, religion, entertainment, agriculture, scientific discovery, household arrangements, warfare, medicine, racial thinking, marriage customs, taxation, government operation and organization, etc., create almost the entire body of cognitive context in use today. Not any of those post-1870 occurrences had anything to do with what anyone thought before 1870, or during the founding era.

                      Thus, anyone who takes that modern context as a basis for analysis of antique texts is destined to get the meanings wildly wrong. And nearly every would-be originalist does that, because they know no other method.

                      Most folks never have to confront the problem of thinking without benefit of context they derived from personal lived experience. People trust their own lived context implicitly and unreflectively. They apply it to everything they encounter, including their attempts at originalism. They don’t even suspect they do it.

                      Pretty much the only people who do confront that problem routinely are professional historians. Few if any of them will be likely to tell you originalism is a potentially reliable basis for legal analysis. The historians are too used to seeing modernisms attributed to historical figures, and recognizing them instantly for the fakes that they are. The historians know from long study what the originalists do not even imagine—the vast differences between the things historical figures could think, and the things we do think.

                      Whenever a historian sees some present-day notion which was impossible to think during the founding era attributed to a historical figure from that time, it takes no research at all to pronounce it an imposture. That happens constantly. The vast majority of views attributed to the founders by would-be originalist amateurs commenting on this blog include that blunder. They are almost all recognizable as fakes, because they almost all include assumed context, modernistic premises, or other presumptions which never show up in the historical record of that time.

                      I mention these points because I am trying to be as nice as I can about telling you that your faith in originalism is misplaced—and that when you make insistent assertions about what originalism can do you risk sounding like a poorly-informed fake to anyone who actually knows the historical record. It is not entirely your fault. Those books and podcasts you rely on are likely teaching you to do it. Their authors ought to be studying more history, but experience teaches us that they won’t do that.

                    6. What are these other methods that you’ve looked at and decided they actually substitute the judge’s policy preferences?

                      It looks to me a lot like you haven’t actually engaged at all with non-originalist jurisprudence, you just hate it sight unseen because you’ve been told so by other people who claim to have done the work.

                      I’d try and do the work yourself. You’ll probably remain an originalist, but then you’ll be one who can talk about why in an intellectually engaged way.

                      https://fas.org/sgp/crs/misc/R45129.pdf is a good start.

                      Read McCulloch v. Maryland, or at least the good bits. Find some reviews of Breyer’s book, ‘Active Liberty’ on a purposivist view of the Constitution (see also the purposive approach on wiki for a surprisingly originalist defense of the method)

    2. Because leftists want to. And so, as always, reality and principles must be bent or discarded or selectively forgotten. Whatever gets the outcome they want is justified however it sounds best at the moment, even if it contradicts whet they said every time before and every time after. That was different, you see.

      And if you notice them doing it they’ll sneer at you, as many of the comments here are sneering at Blackman. You must be one of the wrong kind of people, they’ll think. Stop thinking like the rabble, get more enlightened, join the ruling class.

      1. Your telepathy about the true feelings of the other side is screwing you up, bad.

        I recommend engaging with the substance of those you disagree with, not making up their true feelings and yelling about that.

        1. Sneering isn’t substance. And since when do leftists talk about substance anyway? It’s anyways storytelling and emotion with leftists.

  9. In that case, the defendant did not ask the Court to overrule the case, but an amici did!

    *An* amici? When did “amici” become singular?

  10. If you were scanning a thesaurus for a single word to describe the decision, you would stop when you came to “watershed.”

    OK, I know everyone loves Kagan’s writing, but this sentence is silly. You would have already gone through probably 95% of the thesaurus, and it’s not like X, Y, or Z hold out much hope. So you’d probably just stop out of resignation, rather than a sense of “Eureka!”

  11. The Warren Court was making up law. Proponents of this will say that the Court was confronting unusual times that required decisive answers and when the political branches failed to act (in a manner the court believed action should be taken) it was forced to use the constitutional hammer. Was it justified? History will tell us yes, and I suspect most fair minded constitutional scholars will, taking into account the happenings of the era, say about the same.

    However, it makes for bad law when those unusual times are not applicable. Instead of helping society move along they have created this huge rut which we can’t get out of and the reliance upon both political parties to continue to use the courts for enacting their agendas. The “culture wars” are in a large part still being raged because of this and I don’t think we are better off as a society for it.

  12. This seems to illustrate the typical liberal one way ratchet that seems to apply to so many things.

    1. Yes, when you stand against all change, all policies, institutions, and even time looks like it’s against you.

      But have no fear, GOP-created paralysis has a ratchet effect all it’s own!
      Minimum wage has effectively dropped since the 1970s
      IRS enforcement has been gutted
      Wealth disparity is increasing well beyond believability
      We got another easily avoidable debt ceiling crisis acomin!

      1. “Wealth disparity is increasing well beyond believability”

        A natural consequence of ‘progressive’ taxation: When you can increase the revenue yielded by a given amount of income simply by concentrating it in fewer hands, why would you not expect the government enjoying that income to wish it so concentrated, and be biased in favor of policies that would concentrate it?

        You want income inequality to drop, get rid of the progressive income tax, and deprive the government of this incentive to make income inequality worse.

        1. Pretty sure the reasons great wealth distorts government policy isn’t to increase tax revenue, chief.

          1. No, I was addressing the reason government itself is motivated to set its policy to concentrate wealth. The wealthy themselves have different motives for preferring it.

            1. Government itself is motivated to do so because economic power includes political power, especially after Buckley. Whatever incentive you’re talking about is nothing compared to direct influence of interested parties.

              Plus, of course money makes money faster than anything else makes money in unregulated capitalism.

      2. “We got another easily avoidable debt ceiling crisis acomin!”

        Are you referring to the national debt as a crisis, or to the debate over raising the debt ceiling to pay for already-appropriated programs, which seems a retarded way to fight the issue, but then the GOP is the stupid party.

        It’s also one wing of the Debt Party, the Democrats being the other wing.

      3. A big portion of wealth disparity (which exists in every single society BTW) is because the libs gave us the glory of the welfare state for so many decades. Stripping lower classes of individual agency to make them chattel to the governing class is a great way to promote a permanent underclass, which is exactly what it did and was designed to do. It continues today by telling certain people that there is no way they can achieve because of non-existent systemic discrimination. (Which BTW tell that to the lines of people who want to get into this country because we provide avenues of opportunity…most of whom are people of color…)

  13. So is a case currently on collateral review asserting a watershed exception then subject as a matter of law to the overruling of Teague’s procedural rule doctrine or no? A most ingenious paradox.

    I have some trouble with this decision. It seems to imply that the federal judiciary has scrutinized every single reason for decision in the US Reports and has not found a single one that, in any conceivable rational reading, could result in a procedural rule that would result in a fundamentally unjust imprisonment. Criminal procedure rules aren’t like most other legal doctrines. They’re like massive dams set up after a sufficient number of rivulets have opened up that result in unsavoury practices. (Though the word “watershed” is admittedly hugely problematic — recalls Lon Fuller’s admonition that pungency comes at a cost of precision.) It’s entirely conceivable that a new clear-cut doctrine might need to be announced (in the field of electronic privacy, perhaps), and then there’s going to be a lot of tension in the reticulate web of law when Habeas principles come up against an apparently absolute procedural bar. Or perhaps that will “un-moribund” the rule.

    Mr. D.

    Mr. D.

  14. The rule is pretty simple, new (not old) procedural (not substantive) rules are not applicable on collateral review. So we don’t have to give a new trial and have the victims relive the fifteen year old rape and robbery crimes that this guy confessed to on videotape (and not just retry this case, but thousands more). This has been settled law for decades. The only thing new in this case was the elimination of a watershed exception that has never been applied. It is a complete unicorn; it never existed. The Court (sensibly, I think) got rid of it.

  15. “Justice Kagan’s preference to stare decisis should extend to cases that Justice Brennan did not join.”

    An odd thing to say, given the context.

    The question presented in Edwards v. Vannoy was whether last term’s decision in Ramos v. Louisiana is retroactive on habeas review. In Ramos, Justice Kagan voted to reaffirm two Burger Court decisions Justice Brennan refused to join — viz., Johnson v. Louisiana, 406 U.S. 356 (1972), and Apodaca v. Oregon, 406 U.S. 404 (1972). See Johnson, 406 U.S. at 395-96 (Brennan, J., dissenting).

    What’s more, Justice Kagan’s Edwards v. Vannoy dissent defends a principle established in another decision Justice Brennan rejected — viz., Teague v. Lane, 489 U.S. 288 (1989). Notably, Teague repudiated the approach to retroactivity that Justice Brennan developed in Stovall v. Denno, 388 U.S. 293 (1967).

    I take it that the author probably knows all of this — that he simply thought that the short, punchy statement had a nice ring to it. Given the context, however, the comment is rather surprising.

    1. Blackman writes for the sole purpose of holding water for conservatives. As an ex-student of his, his approach to constitutional law left a lot to be desired.

      1. This discussion has distilled, predictably, to two camps: (1) People who like decisions that favored abusive policing, racists, gay-bashers, polluters, misogynists, corrupt prosecutors, xenophobes, established economic interests, government-supported superstition and (2) people who like decisions that favored the environment, criminal defendants, Black Americans, women, reason, gay people, poor people, members of disfavored minorities, civil rights, and immigrants.

        Justice Gorsuch seems to dislike the 60s-80s period, which was a period in which unearned privilege, bigotry, superstition, big business, and his mother’s reputation took substantial — and deserved — hits.

        1. Indeed. It is deeply saddening to see Justice Gorsuch to do what he can to return to the days when the Democrats were in charge! I expected better of him.

  16. The Warren court was the first court to fully embrace the changes that the 13th,14th and 15th amendments to the constitution brought on. Courts after the civil war and up to the warren court had tried hard to limit the applicability of the reconstruction amendments. Now we are going backward. Justice Gorsuch and company long for the days where the court would limit these treasured amendments. Did the Warren Court go far in some respects? Probably. In others, the changes were long overdue.

    1. “Now we are going backward. Justice Gorsuch and company long for the days where the court would limit these treasured amendments. ”

      Justice Gorsuch and his fellow clingers will take America backward solely so far and so long as better, modern Americans permit. That has become the American way. Conservatives get to delay progress a bit, and complain about progress as much as they wish, but they always lose in our culture war.

      1. “Conservatives get to delay progress a bit, and complain about progress as much as they wish, but they always lose in our culture war.”

        Getting rid of women’s sports is pretty conservative, Arthur. You don’t like to be called conservatives, but you sure act like conservatives.

        1. Cranky, flailing, defeated clingers are among my favorite culture war casualties.

          You guys aren’t even giving your betters a good contest anymore.

          1. And I’m sure you’re looking forward to being able to crack the whip over your slaves once Democrats manage to restore their legacy!

      2. As much as you think restoring segregation in schools, judging people by the color of their skin, and censoring everyone who disagrees with the Establishment, it’s not.

        And I really wish that you would stop calling the people who oppose such policies bigots. They are far less bigoted than you.

  17. Do you think that a justice has ever decided not to overrule prior precedent that the justice strongly disagreed with because of stare decisis? I doubt it.

    1. Strongly doing a lot of work here. Stare does not enshrine past precedent in iron, but it’s persuasive. If a justice merely disagrees with a precedent, but not strongly. Certainly, looking at the evolution of our law since the Founding, it is hard to argue it doesn’t have an effect keeping the Court from overruling itself willy-nilly whenever the court changes.

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