I have previously blogged about Stealth Overruling, most concisely articulated in Barry Friedman’s article, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona). The ABA Journal has a lengthy piece titled Dead Precedents exploring this concept, whereby the Supreme Court does not overtly overrule a precedent, but narrows and limits it to the point where it is no longer meaningful. Friedman is prominently featured:
“The hallmark of stealth overruling,” says New York University law professor Barry Friedman, “is that the justices are perfectly aware that they are overruling, but hide the fact that they are doing so.”
Instead, the court has sneaked through opinions that denude earlier cases of effectiveness, yet leave them barely alive.
Or a justice will have planted a time bomb in a current opinion, hoping a friendly lawyer or legislator will later spark the fuse, exploding the precedent into constitutional oblivion.
The tactic “obscures the path of constitutional law from public view, allowing the court to alter constitutional meaning without public supervision,” wrote Friedman in “The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona),” a paper published last fall by the Georgetown Law Journal.
The article also dubs Michigan v. Bryant, which largely gutted Scalia’s confrontation clause jurisprudence, as an instance of stealth overruling.
So far this term, experts point to Michigan v. Bryant as a case where the court is starting to carve away slices of its confrontation clause jurisprudence. The court said a wounded crime victim’s statement to police identifying the person who shot him may be admitted as trial evidence if the victim dies before trial, because the interrogation’s purpose was to enable police to deal with an ongoing emergency.
In dissent, Scalia said, “the opinion distorts our confrontation clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the court makes itself the obfuscator of last resort.”
This is much better than Friedman’s stab at John Roberts as an Illusionist.