Promises the Justices Can't Keep?
Once in a while, Supreme Court Justices write dissenting opinions in which they announce that they not only disagree with the majority's ruling, but that they disagree so strongly that they will never recognize the decision as binding precedent. I wonder, how often do the Justices stick with these promises?
This question occurred to me when I recently reread Dickerson v. United States, 530 U.S. 428 (2000), the case that reaffirmed Miranda v. Arizona (the famous "right to remain silent" case). Justice Scalia dissented, joined by Justice Thomas, and announced that he would from then on apply the voluntariness test of 18 U.S.C. 3501 instead of the protections of Miranda:
I believe we cannot allow to remain on the books even a celebrated decision -- especially a celebrated decision -- that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people.
I dissent from today’s decision, and, until § 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant’s confession was voluntary.
In the 6+ years since Dickerson, however, neither Justice Scalia nor Justice Thomas has ever applied or even mentioned § 3501. Instead, they have written and/or joined a number of decisions applying Miranda, albeit in narrow ways that ruled against the defendant. See, for example, Seibert, Patane, Alvarado, and Chavez v. Martinez. It's possible that there wasn't enough of a finding of voluntariness in some of those cases to justify the application of § 3501, but I gather this isn't true with every case (such as Patane). It seems more likely that the Justices either forgot about this rhetorical flourish, or that they realized that refusing to recognize Miranda at all was a tough direction to take on a closely-divided Court.
It would be interesting to look through the U.S. Reports for more examples of this kind of phenomenon. When Justices declare that they will never recognize a line of precedent, how often do they stick with it? I can think of examples of Justices sticking to their promises; for example, Justices Brennan and Marshall and their "relentless dissents" about the death penalty. But I suspect that it's more common for Justices to change course in later cases.