Hasen on Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence

January 31st, 2011

Richard Hasen has a new article on SSRN titled Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law. Here is the abstract:

This is a short Essay prepared for a panel on the Roberts Court as an Overruling Court for an Emory Law Journal conference.

Without doubt, the Supreme Court’s most prominent decision so far under the leadership of Chief Justice John Roberts has been Citizens United v. FEC. The Court has been subject to heavy criticism for this case. A Barry Friedman has pointed out in a recent Georgetown Law Journal article, the Supreme Court does not always move the law in such a prominent fashion. It also engages in “stealth overruling. when it “fail[s] to extend a precedent to the conclusion mandated by its rationale” or it “reduc[es] a precedent to nothing.”

I leave to others the question whether the Roberts Court empirically engages in more (stealth) overruling than earlier groups of Supreme Court justices did, and even if the Roberts Court does so, whether a higher overruling rate is grounds for condemnation. Instead, the more modest aim of this brief Essay is to catalog additional tools that Supreme Court Justices can use beyond express and stealth overruling to move the law. I also explain why Justices might choose to use one, rather than another, of these tools to move the law.

In particular, I analyze four additional tools. Anticipatory overruling occurs when the Court does not overrule precedent but indicates its intention to do so in a future case. Invitations exist when one or more Justices (1) invite litigants to argue for the overruling of precedent in future cases or (2) invite Congress to overrule Supreme Court statutory precedent. Time bombs exist when Justices include within a case subtle dicta or analysis not necessary to decide it with an eye toward influencing how the Court will decide a future case. Inadvertence occurs when the Court changes the law without consciously attempting to do so, through attempts to restate existing law in line with the writing Justice’s values.

These tools demonstrate how Justices with a long time horizon and patience sometimes can move the law both subtly (sometimes even unconsciously) and forcefully. Part I describes these four tools, using illustrations from Roberts Court cases primarily in the election law and remedies arenas. Part II briefly compares the costs and benefits of these tools to each other and to express and stealth overruling, and notes that the tools function to send signals to different audiences: lower courts, Congress, the public, and other members of the Court.

This piece builds a little on Barry Friedman’s Stealth Overruling, which I commented on here.

Hasen’s article fits nicely into the Roberts-changing-the-law meme. I’m sure all of the items Hasen identifies are accurate. I just question whether these are new phenomenons,or are, in fact, tools of common law judges since time immemorial.  I’ll have to do a JLR search for articles written during the Warren Court about Time Bombs. I can’t imagine the bombs that Brennan threw.

Update: Rick Hasen replies to my post here:

Josh Blackman also asks whether these are new phenomena or tools of common law judges from time immemorial. In fact, in the paper I make it clear that these are not new phenomena, and I give examples of pre-Roberts Court uses of the same tools. Indeed, the term “time bombs” comes from the recent Brennan biography, and comes from a complaint that Justices Powell and O’Connor shared about how Justice Brennan wrote some of his opinions.

Very interesting, and I appreciate the clarification. I have not yet had a chance to read Hasen’s paper, but it is near the top of my list.