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Alito v. Sotomayor on Stare Decisis

June 17th, 2013

Perhaps the most important jurisprudential aspect of Alleyne concerns a dueling battle between Alito and Sotomayor on stare decisis.

Justice Alito takes the Court in Alleyne to task for overturning Harris without due concern for stare decisis. If Harris can be overturned, why not Apprendi.

The Court overrules a well-entrenched precedent with barely a mention of stare decisis. See ante, at 16, n. 6. Stare decisis is, of course, not an “inexorable command” in the field of constitutional law. Payne v. Tennessee, 501 U. S. 808, 828 (1991). Nevertheless, the Court ought to be consistent in its willingness to reconsider precedentIf Harris v. United States, 536 U. S. 545 (2002), and McMillan v. Pennsylvania, 477 U. S. 79 (1986), can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases. See Arizona v. Gant, 556 U. S. 332, 358– 364 (2009) (ALITO, J., dissenting).

… The Court’s decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies

Notably, the Chief’s dissenting opinion, joined by Scalia and Kennedy does not take exception with the application of stare decisis.

I will not quibble with the majority’s application of our stare decisis precedents. But because I believe the major- ity’s new rule—safeguarding the power of judges, not juries—finds no support in the history or purpose of the Sixth Amendment, I respectfully dissent.

Of course, the Chief famously wrote separately about stare decisis in Citizens United.

At the very end of Justice Alito’s dissenting opinion he adds a three-page long footnote (that includes the elusive blank page!) faulting the majority for overturning Harris v. United States, and in particular taking exception with the concurring opinion by Justice Sotomayor. This lengthy footnote looks like it was added on late in the game, after reading Soto’s concurrence.

Speaking for herself, JUSTICE GINSBURG, and JUSTICE KAGAN—but not for the Court—JUSTICE SOTOMAYOR argues that Harris’ stare decisis value is undermined by the subsequent reasoning of the Court’s Apprendi line of cases and by the fact that no one rationale in Harris commanded five votes. I disagree.

Justice Sotomayor wrote separately, likely in response to Alito’s opinion, to explain when it is appropriate to reverse precedent, and address Justice Alito’s charges.

Of course, under our doctrine of stare decisis, establishing that a decision was wrong does not, without more, justify overruling it. While stare decisis is not an “inexorable command,” Hohn v. United States, 524 U. S. 236, 251 (1998) (internal quotation marks omitted), it is “a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion,’” Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989) (quoting The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton)). We generally adhere to our prior decisions, even if we question their soundness, because doing so “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). To protect these important values, we require a “‘“special justification”’” when departing from precedent. Dickerson v. United States, 530 U. S. 428, 443 (2000). A special justification is present here.

Sotomayor identifies several justifications. First, that this case concerns a procedural rule:

As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. See United States v. Gaudin, 515 U. S. 506, 521 (1995); Payne, 501 U. S., at 828. And any reliance interest that the Federal Government and state governments might have is particularly minimal here because prosecutors are perfectly able to “charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury.”

Second, Sotomayor observes the case has been eroded by subsequent precedents:

In this context, stare decisis does not compel adherence to a decision whose “underpinnings” have been “eroded” by subsequent developments of constitutional law. Gaudin, 515 U. S., at 521. In rejecting a constitutional challenge to a state statute that increased a defendant’s minimum sentence based on judicial factfinding, McMillan relied on a distinction between “elements” and “sentencing factors.” 477 U. S., at 86. That distinction was undermined by Apprendi, where we held that a legislature may not “remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”

Alito is not persuaded.

In my view, Harris’ force is not vitiated by the Court’s Apprendi line of cases, for two reasons. First, that line of cases is predicated on a purported Sixth Amendment requirement that juries find facts that increase maximum penalties, not mandatory minimums. Accordingly, as THE CHIEF JUSTICE’s dissent persuasively explains, ante, at 1–7, Apprendi and its progeny have no impact on the distinct question resolved by Harris, which does not bear on the jury right. Second, the Apprendi line is now too intellectually incoherent to undermine any “contrary” precedents. If the rationale of Apprendi—which, as broadly construed by the Court in this case, is that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt,” ante, at 1—were taken seriously, discretionary sentencing, as prescribed by 18 U. S. C. §3553(a), should also be held to violate the Sixth Amendment. But a majority of the Court has not been willing to go where its reasoning leads

Third, Sotomayor remarked that members of the Court have continued to question the precedent–such as Breyer’s perpetual dissent of Apprendi.

We have said that a decision may be “of questionable precedential value” when “a majority of the Court expressly disagreed with the rationale of [a] plurality.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 66 (1996). And Harris has stood on especially weak ground because its vitality depended upon the possibility that the Court might retreat from Apprendi. See Harris, 536 U. S., at 569–570 (opinion of BREYER, J.). That has not happened. Instead, while individual Members of this Court have continued to question Apprendi, see post, at 1–2 (opinion of BREYER, J.); post, at 1–2 (ALITO, J., dissenting), its rule has become even more firmly rooted in the Court’s Sixth Amendment jurisprudence in the decade since Harris.

Update: In Arizona v. Inter Tribal Council of Ariz., Inc., Justice Scalia makes a similar point about the precedential value of plurality opinions, curiously also citing Seminole Tribe. H/T Greg

In Mitchell, the judgment of the Court was that Congress could compel the States to permit 18-year-olds to vote in federal elections. Of the five Justices who concurred in that outcome, only Justice Black was of the view that congressional power to prescribe this age qualification derived from the Elections Clause, 400 U. S., at 119–125, while four Justices relied on the Fourteenth Amendment, id., at 144 (opinion of Douglas, J.), 231 (joint opinion of Brennan, White, and Marshall, JJ.). That result, which lacked a majority rationale, is of minimal precedential value here. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 66 (1996); Nichols v. United States, 511 U. S. 738, 746 (1994); H. Black, Handbook on the Law of Judicial Precedents 135–136 (1912). Five Justices took the position that the Elections Clause did not confer upon Congress the power to regulate voter qualifications in federal elections. Mitchell, supra, at 143 (opinion of Douglas, J.), 210 (opinion of Harlan, J.), 288 (opinion of Stewart, J., joined by Burger, C. J., and Blackmun, J.). (Justices Brennan, White, and Marshall did not address the Elections Clause.) This last view, which commanded a majority in Mitchell, underlies our analysis here. See also U. S. Term Limits, 514 U. S., at 833. Five Justices also agreed that the Fourteenth Amendment did not empower Congress to impose the 18-year-old-voting mandate. See Mitchell, supra, at 124–130 (opinion of Black, J.), 155 (opinion of Harlan, J.), 293–294 (opinion of Stewart, J.).

Likewise, Alito is not persuaded here, and stresses that many fractured opinions have much precedential weight–including Justice Powell’s Bakke plurality.

Nor can it be correct to say that “Harris in no way strengthens the force of stare decisis in this case” because a “ ‘majority of the Court expressly disagreed with the rationale of [a] plurality.’ ” Ante, at 3–4 (SOTOMAYOR, J., concurring) (quoting Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 66 (1996)). Decisions in which no one rationale commands a majority of the Court—including prominent decisions based on the views of a single Justice—are often thought to have precedential effect. See, e.g., United States v. Booker, 543 U. S. 220 (2005); Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 269–272 (1978) (opinion of Powell, J.). And, of course, if Harris is not entitled to stare decisis weight, then neither is the Court’s opinion in this case. After all, only four Members of the Court think that the Court’s holding is the correct reading of the Constitution. See ante, at 1–3 (BREYER, J., concurring in part and concurring in judgment).

Alito disagrees with Sotomayor’s approach to stare decisis, and calls her out for changing precedent only because there are the votes to do so.

As she concedes, ante, at 4, JUSTICE SOTOMAYOR’s concurrence is necessarily selective in its discussion of the factors that the Court has previously found to be relevant to the application of stare decisis . . . . In short, other than the fact that there are currently five Justices willing to vote to overrule Harris, and not five Justices willing to overrule Apprendi, there is no compelling reason why the Court overrules the former rather than the latter. If the opportunity arises in the future to overrule Apprendi or the present case—both of which presumably involve “procedural rules . . . that do not govern primary conduct and do not implicate the reliance interests of private parties,” ante, at 2 (SOTOMAYOR, J., concurring)—the precedent the Court sets today will be relevant to the issue of stare decisis.

Wow. Sotomayor responds to Alito’s charge that Harris was overruled only because five justices so voted:

JUSTICE ALITO is therefore mistaken when he suggests that the Court overrules Harris because “there are currently five Justices willing to vote to” do so. Post, at 3, n. *. No doubt, it would be illegitimate to overrule a precedent simply because the Court’s current membership disagrees with it. But that is not a plausible account of the decision today. The Court overrules McMillan and Harris because the reasoning of those decisions has been thoroughly undermined by intervening decisions and because no significant reliance interests are at stake that might justify adhering to their result. Likewise, JUSTICE ALITO exaggerates when he suggests that this case creates an important “precedent about precedent.” Post, at 2. Rarely will a claim for stare decisis be as weak as it is here, where a constitutional rule of criminal procedure is at issue that a majority of the Court has previously recognized is incompatible with our broader jurisprudence. And finally, JUSTICE ALITO’s contention that Apprendi and Harris stand on equal footing for stare decisis purposes, post, at 1–2, 3–4, n. *, is simply inconsistent with our last decade of Sixth Amendment jurisprudence

I suspect the debate between these two over Apprendi will re-emerge in the near future.

Justice Thomas Perpetually Dissents on Padilla v. Kentucky

February 20th, 2013

Justice Thomas dissented in Padilla v. Kentucky. In Chaidez v. United States, he wrote that he still thinks it was wrong.

In Padilla v. Kentucky, 559 U. S. 356 (2010), this Court held that the Sixth Amendment requires an attorney for a criminal defendant to apprise his client of the risk of deportation created by a guilty plea. I dissented. The Sixth Amendment provides that “[i]n all criminal prosecutions,” an accused enjoys the right “to have the Assistance of Counsel for his defence.” By its terms, this right extends “to legal advice directly related to defense against prosecution of the charged offense,” and “[t]here is no basis in text or in principle” to expand the reach of this guarantee to guidance concerning the collateral consequences of a guilty plea. Id., at ___ (slip op., at 2–3) (SCALIA, J., dissenting). Today, the Court finds that Padilla announced a new rule of constitutional law and that, under our decision in Teague v. Lane, 489 U. S. 288 (1989), “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Ante, at 15. I continue to believe that Padilla was wrongly decided and that the Sixth Amendment does not extend—either prospectively or retrospectively—to advice concerning the collateral consequences arising from a guilty plea. I, there- fore, believe that the Teague analysis is unnecessary and thus concur only in the judgment.

Another perpetual dissent from CT.

Breyer Still Perpetually Dissenting From Apprendi

January 14th, 2013

From oral argument today in Alleyne v. United States, Justice Breyer continued to perpetually dissent from Apprendi, a case that gutted the Sentencing Guidelines he helped write.

JUSTICE BREYER: I mean, in the one case you can say all that Apprendi did — it never should have been decided; I mean, some of us thought that — because in fact -­

JUSTICE SCALIA: I wonder who that could have been.

(Laughter.)

Get over it SGB.

I have proposed a rule against perpetual dissents. On the topic, Justice Kagan had interesting thoughts on the purposes behind dissenting.

Kagan’s Two Types of Dissents

December 14th, 2012

Justice Kagan gave a lecture at the 6th and I synagogue in Washington, D.C. (where I used to attend), and commented on two different types of dissents–which she has “a little bit of practice now.”

There are two types of dissents, Kagan said. The first are cases, like the two she mentioned [one about campaign finance and one about taxpayer dollars going to religious institutions–JB: Arizona Free Enterprise v. Whiting and Arizona Christian School Tuition v. Winn, respectively] and , that are particularly important and which lead a judge to write her dissent hoping that it will be read in the future as a “marker.”

“You want to set down an alternative way of viewing the issue…in the hope that that might affect something in the next case, or the next case or the next case. You would love that some day this decision is going to be reversed and my way will be the law of the land,” Kagan said, though she noted those instances are rare.

These likely turn into perpetual dissents (see here, here, and here). I have proposed, but no one has seconded, my rule against perpetual dissents.

Implicit in Kagan’s comments is that such a “marker” dissent does not accept the precedent as being valid (in conflict with the other type, discussed infra, which she accepts, begrudgingly perhaps). Breyer is more blunt–the majority is simply wrong.

In a recent Sidebar column, Adam Liptak focused on Breyer’s Perpetual Dissent (and cites a GMU Law Review article!)

In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

Likewise, Justice Sotomayor has no problem labeling the majority as “wrong.”

“I do think I was right. I think the (majority) were wrong.”

Breyer, like Sotomayor, and Ginsburg never accepted Heller as valid. Kagan has joined Ginsburg, Breyer, Sotomayor, and Stevens, in arguing that Citizens United is not valid, in light of their vote in the Montana case last year.

But for some cases, Kagan dissents, because, well, just sayin.

Other times, though, Kagan said, a judge writes a dissent to explain why she disagrees and out of respect for the litigants and the law, but then she moves on and accepts the majority opinion as the law of the land.

This is a very important discussion. I’m glad the Justices are frank about what they are trying to do with their dissents. I’m still not sure about Kagan’s Medicaid vote in NFIB. Just sayin.

Of course, Justice Harlan’s explanation of dissenting is my favorite.

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

Kagan, who Larry Tribe noted would have “purchase” on Justice Kennedy–as opposed to Sonia Sotomayor, who would not–prided herself in being able to “move minds”:

Kagan said that, although there are cases where justices “just see the law differently,” there are also those “where you can persuade each other and you can find a greater answer than anyone could see at the beginning. … I love the cases where you can and you do move minds.”

Kagan also commented on the role public opinion does (not) play in judging.

“Well, I don’t think any of us make our decisions by reading polls,” Kagan said. “One’s sense of what to do as a judge is bounded in some way by the society in which one lives” and the political process of getting appointed, she said.

Still, the justice said, “One does think long and hard as a judge — and I’m not sure I’ve ever been in this position –… before you do something that you think is required by law that would be incredibly disruptive to society, and that’s where great wisdom is called for.”

Kagan was also asked about how her faith impacts her role on the Court:

Kagan was also asked about how her religion has affected her on the court, where she is one of three current Jewish justices. (The other six are Catholic).

“It feels very natural; it doesn’t feel like a big deal. And that is an unbelievable thing about this country,” she said.

And as for being a woman on the bench: “We go into the conference room; we close the door. I don’t think that very much turns very often on the gender differences.”

I’ll never forget Kagan’s answer to Senator Graham of how she spent her Christmas day:

 “Like all Jews, I was probably at a Chinese restaurant.”

A very cool lecture. I’m sorry I missed it.

Citizens United v. FEC (Stevens, J., dissenting, perpetually)

May 31st, 2012

Justice Stevens, who last I check retired as an active Associate Justice of the Supreme Court, continues to dissent in a case decided nearly two years ago.

But Jus t i c e Al i to’ s r e a c t ion doe s pe r suade me tha t ln due cour s e i t wi l l be ne c e s s a ry for the Cour t to i s sue an opinion expl i c i t ly c r a f t ing an exc ept ion tha t wi l l c r e a t e a c r a ck ln the founda t ion of the Ci t i z ens Uni t ed ma jor i ty oplnlon. For hi s s t a t ement tha t i t i s “not t rue ” tha t for e ign ent i t i e s wi l l be among the bene f i c i a r i e s of Ci t i z ens uni t ed of f e r s good r e a son to pr edi c t the r e wi l l not be f ive vot e s for such a r e sul t when a c a s e a r i s e s tha t r equi r e s the Cour t to addr e s s the i s sue in a ful l opinion. And, i f so, the Cour t mus t then expl a in i t s abandonment of , or a t l e a s t qua l i fy i t s r e l i anc e upon, propos i t ion tha t the ident i ty of the spe ake r i s an impe rmi s s ibl e ba s i s for r egul a t ing c ampa ign spe e ch. I t wi l l be ne c e s s a ry to’ expl a in why the Fi r s t Amendment provide s gr e a t e r prot e c t ion to the c ampa ign spe e ch of some non-vot e r s than to tha t of othe r non-vot e r s .

Whi l e I r e cogni z e tha t the membe r s of the Supr eme Cour t ma jor i ty tha t de c ided Ci t i z ens Uni t ed di s agr e e wi th my judgment on thi s i s sue ! I think i t c l e a r – for a l l the r e a sons expl a ined in my Ci t i z ens Uni t ed di s s ent and e a r l i e r in thi s t a lk- tha t the i r di s agr e ement i s ba s ed not on some cont rol l ing rul e of l aw! but r a the r on the i r di f f e r ing vi ews about wha t rul e wi l l be s t s e rve the publ i c int e r e s t .

(I apologize for the bizarre spacing but the PDF has some serious formatting issues and I do not have time to clean it up).

JPS gives new meaning to the concept of the “perpetual dissent.”

Update: Doug Berman comments:

What is Justice Stevens up to?  It is hard to see how this speech is not timed to have some influence over the Court and what it will do in the Montana case.  Let’s put aside the propriety of the retired Justice speaking about this case (I leave that ethical question to others who know something about the subject—though I predict political hacks on the right will condemn Stevens for making this speech now and hacks on the left will defend him.)  But what’s the goal of the speech now?  To get the Court to set the Montana case for argument? To buck up the likely dissenters in the Montana case?  If it is to get the Citizens United majority to reconsider its opinion in Citizens United, it hardly seems likely to work.  His long dissent didn’t do it. What’s different now doctrinally? Bluman? I hardly think that will be enough to convince Justice Kennedy or the Chief Justice.  More public criticism?  There’s been plenty of that.