Richard L. Hasen, Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law

• Citation: Vol. 61 No. 4
• Publication year: 2012

ANTICIPATORY OVERRULINGS, INVITATIONS, TIME BOMBS, AND INADVERTENCE: HOW SUPREME COURT JUSTICES MOVE THE LAW

Richard L. Hasen*

INTRODUCTION

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.1 This 5–4 decision, striking down corporate campaign spending limits against a First Amendment challenge2 and overruling two earlier Supreme Court

precedents,3 has been the subject not only of sustained academic commentary and editorial criticism4 but also of controversial criticism from President Obama in his 2010 State of the Union speech in the presence of a number of Supreme Court Justices.5 Critics have condemned Citizens United as the

decision of an “activist” Supreme Court, while supporters have cheered the

* Chancellor’s Professor of Law and Political Science, UC Irvine School of Law. Thanks to Bill Araiza, Josh Douglas, Lee Epstein, Doug Laycock, Christopher Leslie, Rick Pildes, and Adam Winkler for useful comments and suggestions.

1 130 S. Ct. 876 (2010).

2 See id. at 886, 913.

1. Id.; accord McConnell v. FEC, 540 U.S. 93 (2003), overruled in part by Citizens United, 130 S. Ct. 876; Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), overruled by Citizens United, 130 S. Ct. 876. The Court in Citizens United overruled one of the two major holdings of McConnell concerning spending limits on certain corporate- and labor-union-funded election advertising. Citizens United, 130 S. Ct. at 913.

   Challengers have now gone after the other major holding of McConnell, the portion of the case upholding the party “soft-money” limitations of the 2002 McCain–Feingold law. See Republican Nat’l Comm. v. FEC (RNC), 698 F. Supp. 2d 150, 157 (D.D.C.), aff’d mem., 130 S. Ct. 3544 (2010). Though RNC was a poor vehicle for overturning McConnell, “[i]f the RNC refiles its case as a straightforward facial challenge to McConnell’s soft money holding, I would be unsurprised i[f] the Court took the case and then either overturned McConnell or whittled it away first, along the lines of [FEC v. Wisconsin Right to Life, Inc. (WRTL II)].” Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 MICH. L. REV. 581, 621 n.262 (2011); see also infra text accompanying notes 36–40 (discussing Justice Alito’s stated desire for express argument and full briefing before considering the overruling of precedent).

2. For articles on Citizens United, see Hasen, supra note 3, at 603–04 nn.173–77. My own views on the

   case appear in Hasen, supra note 3; Richard L. Hasen, Citizens United and the Orphaned Antidistortion Rationale, 27 GA. ST. U. L. REV. 989 (2011) [hereinafter Hasen, Citizens United]; and Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 [hereinafter Hasen, Constitutional Avoidance].

3. See Adam Liptak, A Justice Responds to Criticism from Obama, N.Y. TIMES, Feb. 4, 2010, at A17.

   Court for correcting earlier errant precedent in conflict with the First Amendment.6

   
   

   As 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.7 Despite the Citizens United ruling, and maybe now more because of the public reaction to it, express overrulings of precedent are rare. The Roberts

   Court also has engaged in “stealth overruling.” Stealth overruling occurs when the Court does not explicitly overrule an existing precedent. Instead, it “fail[s] to extend a precedent to the conclusion mandated by its rationale,” or it “reduc[es] a precedent to nothing.”8 Using the example of the Roberts Court’s treatment of Miranda v. Arizona,9 Friedman demonstrates how the Court has been able to greatly reduce the precedential force of the Miranda case without incurring public scrutiny and criticism.10 Friedman is critical of stealth overruling on a number of grounds, most importantly because “stealth overruling obscures the path of constitutional law from public view, allowing the Court to alter constitutional meaning without public supervision.”11

   
   

   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.12 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.

   
   

4. Consider the recent heated debate between Floyd Abrams and Burt Neuborne in The Nation. Floyd Abrams & Burt Neuborne, Debating Citizens United, NATION, Jan. 31, 2011, at 19.

5. Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona),

   99 GEO. L.J. 1, 3 (2010).

6. Id. at 12.

9 384 U.S. 436 (1966).

1. Friedman, supra note 7, at 16–25.

2. Id. at 63.

3. The Roberts Court did not invent stealth overruling. For example, the Warren Court’s famous 1962 case of Baker v. Carr, 369 U.S. 186 (1962), which held reapportionment claims to be justiciable under the Constitution’s Equal Protection Clause, id. at 237, seems to be a stealth overruling of Colegrove v. Green, 328

1. 549 (1946), which held that such reapportionment claims are not justiciable under the Constitution’s Guarantee Clause, id. at 556 (plurality opinion). I do note on the condemnation point that, if existing Supreme Court precedent deviates more from the ideal point of the median Justice on the Roberts Court than precedent deviated from the ideal point of the median Justice on earlier Courts, we could see more overruling now, even if earlier groups of Justices were equally “activist” in terms of willingness to overturn precedent with which they disagreed.

   In particular, I analyze four additional tools. “Anticipatory overruling” occurs when the Court does not overrule precedent but suggests its intention to do so in a future case. “Invitations” exist when one or more Justices invite (1) litigants to argue for the overruling of precedent in future cases or (2) 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.13

   
   

   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.

   
   

   1. FOUR (MORE) WAYS JUSTICES MOVE THE LAW

      
      

      Whether one accepts the “attitudinal model” of Supreme Court Justices,14 there seems to be little question that, on occasion, Justices on the Supreme Court wish to change existing law. Indeed, given the nearly complete freedom the Supreme Court has in choosing cases to review,15 perhaps the most

      
      

      1. As will become clear, inadvertence is not a conscious tool used by Justices the way these other tools are used.

      2. See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL

         (1993). The attitudinal model says that the Supreme Court decides cases based on the “ideological attitudes and values of the justices.” Id. at 65.

      3. See Joshua A. Douglas, The Procedure of Election Law in Federal Courts, 20 UTAH L. REV. 433, 446

         (2011). A number of election law cases still make it to the Court on direct appeal through three-judge courts. See id. at 455. When a case comes on appeal, the Court’s decision not to hear the case has precedential value, unlike the system that applies for denials of discretionary writs of certiorari. See id. at 455–56. For this reason, the Court is more likely to grant hearings from direct appeals. See RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 36–38 (2003) (discussing the

         reasons the Supreme Court’s poll tax case, Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), was decided through a full opinion and not through a summary affirmance and dissent). For background on the direct-appeal process, see Douglas, supra, at 14–18, 23–25; Michael E. Solimine, The Three-Judge District Court in Voting Rights Litigation, 30 U. MICH. J.L. REFORM 79, 132 (1996).

         common reason that a Justice will vote to hear a case will be to make some change in existing law.16

         
         

         The strongest and most definitive way for Supreme Court Justices to move the law is through express, direct action: expressly overruling or extending precedent. But there are at least four reasons why such express action may be unavailable or undesirable in a particular case: (1) no majority of Justices may be willing to move the law in a particular direction; (2) express overruling or extension of precedent might lead to fractious 5–4 decisions, which Justices might wish to avoid for reasons of collegiality or otherwise; (3) jurisdictional or prudential concerns may lead the Court to decline to expressly overrule or extend precedent; or (4) Justices may fear public opinion or retaliation by the

         political branches.17 Accordingly, Justices might sometimes look to move the

         law in other, less direct ways.

         
         

         1. Anticipatory Overruling

            
            

            Though Citizens United is thus far the most famous case of the Roberts Court, it was almost the second most famous case.18 The public is scarcely aware of it, but in 2009 the Supreme Court in Northwest Austin Municipal...