Stealth Overruling & Much Ado About Dictum

July 27th, 2010

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.
And why does the Court overule something by stealth? This is a Barry Friedman article, so unsurprisingly the answer is based on public perception.
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.
I think the notion of “stealth overruling” really boils down to an improper treatment of precedent and stare decisis. Broadly or narrowly construing a precedent allows 5 Justices to do damn nearly anything.
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
I wrote about evasion of precedent when Judges selectively characterize a precedent as either holding or dicta. Please take a look at a paper I wrote for Jurisprudence in law school (a paper I hope some day to turn into an article) titled Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction Between Holding & Dictum. By classifying a precedent as holding, or dictum, a Judge can quite deftly avoid any precedent he sees fit. If anything, this is a really sneaky means of “stealth overruling.” While generally only the Supreme Court can get away with the the kind of “Stealth Overruling” Friedman discusses, Judges of all stripes can whip out the holding/dictum divide whenever they see fit. Here is the abstract of the article:

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.