Barry Friedman has a Friedman-esque new article about Stealth Overruling on the Roberts Court, titled The Wages of Stealth Overruling (With Particular Attention to Miranda V. Arizona) (H/T Legal Theory Blog).

Here is the abstract:

Over the last few years – and especially following the 2006 Term – commentators have criticized the Supreme Court for engaging in “stealth overruling.” This article examines the phenomenon, trying to ascertain why the justices engage in the practice and how we should feel about it. The article focuses on the gradual overruling of Miranda v. Arizona, because here tangible evidence is available about the benefit to the justices – and costs to the rest of us – of the practice of stealth overruling. The article demonstrates that by engaging in stealth overruling the justices are able to see that their will is done by lower courts and public officials, yet avoid any negative effect from public opinion. While the strategy benefits the justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling tempers the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law solely in the justices’ hands.

From the article:

Although there has been some commentary on stealth overruling,
to date no one has really tried to come by any data or hard information
indicating why the justices would choose to overrule by stealth rather than
overtly, or the effects of their choosing to do so. Stealth overruling has
been addressed as a matter of critique or philosophy, but not as a question
of motive and effect.9 That shortfall is addressed here, with particular
attention to the slow undermining of the Miranda rule. Doing so provides
information as to why the justices choose the technique, what the
countervailing considerations are, and how stealth overruling decisions are
treated by government officials and lower courts that the Supreme Court
must govern. This information, in turn, permits normative judgment based
on facts, not speculation.

Polling data on the Miranda decision, and studies of media

reactions to its recent progeny, provide substantial support for the

conclusion that stealth overruling occurs when the justices have reason to

be concerned about a strong negative reaction to their decision, yet are

determined to change the law nonetheless. And while some might claim

that it is appropriate for the justices to engage in stealth overruling in order

to shield decisions about constitutional meaning from majoritarian

passion,10 the argument here is just the opposite: that ultimately the

legitimacy of judicial review turns on public scrutiny of what the justices

are doing, and the ability for dialogic engagement with their constitutional

decisions. For this reason if no other, stealth overruling should be viewed

with skepticism.

Strictly speaking “stealth overruling” is a misnomer. In reality,

what disturbs critics is the disingenuous treatment of prior precedents in a

manner that obscures fundamental change in the law. Existing precedents

are not given their logical scope, or are trimmed to almost nothing,

without sufficient (or any) explanation

From the birth of our Republic, starting with Chief Justice Marshall in Cohens v. Virginia, judges and scholars alike have grappled with the distinction between holding and dictum. However, neither the judiciary nor the academy has been able to come up with a consistent and workable definition of these two concepts. This article attempts to shine some light on this perplexing issue.

This article proceeds as follows. In Part I, I will discuss some of the simpler, yet unsatisfying definitions of dictum, and introduce some of the easy cases, where distinguishing dictum from holding is relatively straightforward. Next, I will chronicle the Supreme Court’s erratic approach to dealing with dictum, and show how this uncertainty has left a gaping void in our jurisprudence. Next, I will discuss prior scholarly attempts to define dictum, and show why their approaches are inadequate, as they only focus on Supreme Court cases, and ignore how the inferior courts treat the distinction.

In Part II, I will confront the task where others have not ventured, and systematically survey and analyze over four hundred court cases that distinguish between dictum and holding. After explaining my methodology and framework, I will attempt to answer three critical questions. First, what is dicta worth? Second, whose dicta must/should/can courts follow? Third, how do courts define dicta? These three questions reveal clues to understanding how courts have treated dictum, and what the distinction means in practice.

In Part III, I will analyze the results from Part II. Based on the arbitrary nature with which courts define dictum, and the varying weight courts assign to dictum, even from superior courts, I conclude that the holding/dictum distinction is a standardless standard. Unlike generally accepted standards of review, labeling an opinion as holding or dictum is an entirely subjective process, which I argue enables judges to easily evade precedent without needing to justify the departure; or in the alternative create precedent where none existed before. Next, I analyze precedent, stare decisis, and dictum through the lenses two jurisprudential schools, legal formalism and realism. I conclude with a legal realist argument, that the distinction between dicta and holding is inextricably linked with a judge’s views on precedent.