One last observation suggested by the opinions in Hein. Once you have five justices in so much agreement as the Conservative Five have been this term, you think there will be no real debates among them. But no matter how much agreement there is among a group of five justices, divisions will always emerge. The end-of-term conflict among the majority this year is not over what the right rule should be, or even about whether to abandon the prior, less conservative, decision—it is over precisely how to go about overruling prior cases. That is a pretty refined division.
Chief Justice Roberts and Justice Alito—perhaps recalling their recent confirmation encomiums to stare decisis—have apparently decided to overrule cases without saying they are overruling them. Justices Scalia and Thomas often won’t go along with that move and thus write separately to say that the earlier cases should be explicitly repudiated. Justice Kennedy has gone both ways this week. The result is that the five justices in the majority break into two opinions, one of which would explicitly overrule a prior case and the other of which would leave it half-dead and unable to procreate. Scalia and Thomas would come clean and invoke the magic phrase “X is hereby overruled” while Roberts and Alito avoid the O word and say things like, “We leave Flast where we found it.”
We saw this pattern in Hein (Scalia and Thomas to overrule; Roberts, Alito, and Kennedy to leave barely breathing); FEC v. Wisconsin Right to Life (Scalia, Thomas and Kennedy to overrule; Roberts and Alito to abandon in a ditch). So, who has the better of this argument over how to bail out on prior law? “Minimalism” cautions that the prior case should be left standing when it is possible to distinguish the new case. Do no more than necessary is the way of restraint. But it’s neither minimalist nor restrained to overrule cases while pretending you are not. There can also be a significant cost to the coherence of the system to have a precedent that is really indistinguishable in principle from new cases that go “the other way.” What are lower-court judges to do when the earlier case is cited? How are they supposed to reconcile the conflicting results? I think on balance that Scalia has the better of this argument with Roberts and Alito. Taking after their decision to avoid saying that Hein overrules Flast, Scalia effectively flays what he calls Alito and Roberts’ “impulse to take a minimalist approach.” Scalia writes convincingly:
But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, yet somehow technically alive.
(Sentences like that make me think that the world would be a better place if Justice Scalia stepped down from the court and started writing for Slate—we would have all the benefit of his humor and insight, but his vote wouldn’t count as the law of the land. Better all around.) Here Scalia is right—the whole point of adherence to stare decisis is to create stability and predictability in the law and to avoid having the outcome of cases differ simply because of a change in the composition of the court. It’s not about magic words.
Just as I was about to send this off, I saw a new posting on National Review Online that has both good news and bad. Ramesh Ponnuru is warmly complimentary about our last posting, but conveys the shocking information that I got the date of Marbury v. Madison wrong. It is of, course, 1803. I wrote 1804 and hit the send button. This may seem a minor matter to you. But Marbury is the holy grail of constitutional law. For one who has taught constitutional law for more than three decades, this is a catastrophic, monumental error. It’s like a sportscaster writing about the “Five Horsemen of Notre Dame.” Ritual disembowelment has to be considered as an option. If you don’t hear from me tomorrow, ask them to scatter my ashes in John Marshall’s cemetery.
P.S. As to your last question: Let me think on it overnight and get back to you on this tricky question of what Brown v. Board meant to those of us who are not Canadian.