The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.
Category Archives: Stare Decisis
On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices’ extensive ruminations on the subject of “narrowing,” or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)
In a few posts, I’ve discussed Supreme Court “signals,” defined as instances when “the Justices undertake official actions that don’t establish conventional precedent or resolve ultimate merits issues, but nonetheless suggest, perhaps deliberately, some aspect of how lower courts should decide cases.” One of my examples had to do with the Court’s unusual cert orders in same-sex marriage cases, which seemed like a signal that the challengers had very strong cases indeed. Today, the idea of a “signal” in this area became quite salient, as Justice Thomas expressly referred to signals in criticizing the Court’s latest same-sex marriage order.
A couple weeks ago, Justice Thomas, joined by Justice Scalia, issued a dissent from denial of cert in Plumley v. Austin, a criminal justice case. In the main, Thomas’s opinion argued that the decision below was wrong on the merits and conflicted with other circuit decisions. But, in a passage that has sparked some debate, Thomas also argued that the Fourth Circuit below had erred in declining to publish its opinion, allegedly in order to “avoid creating binding law for the Circuit.” Thomas’s opinion may be a signal about circuit publication practices and, more specifically, about the proper direction of future Fourth Circuit jurisprudence.
Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding–that police act constitutionally when they make certain mistakes of law–and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the “other” rule of lenity–that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police’s “good faith.” And then there’s the historical dimension of Heien. So, as expected, Heien is a big decision.
For now, I’d like to focus on how lower courts will construe Heien in light of Justices Kagan’s concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan’s decision to join the majority may seem somewhat surprising. But the content of Justice Kagan’s concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan’s concurrence might be an example of “aspirational narrowing.” It’s less clear that Justice Kagan’s efforts will be successful.
As Lyle Denniston recently explained over at SCOTUSBlog, the important affirmative action case Fisher v. University of Texas may soon be headed back to the Supreme Court. This possibility raises an interesting issue of precedent and jurisdiction. The last time that the Court heard Fisher, its published decision ignored certain jurisdictional concerns and remanded for a new merits determination. Could these concerns prove decisive in a sequel decision, or did the Court silently settle the question of jurisdiction in Fisher?