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I dissent from today’s decision, and, until § 3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant’s confession was voluntary.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.

Comments

[Ha]

So I wander over here to see Orin Kerr posting!!!??? I forgot he was visiting at UofC. No matter where I go online, I'm reading the same bloggers.

[LAK]

further proof of the contempt that Scalia has for the rule of law when it differs from his crusty nonsensical frozen in the past interpretations of the Consttution. Religious conservative zealots like him should not be allowed on the high court. I'm not sure who is more embarassing to the U of C, Ashcroft or Nino. Both are shameful human beings.

[andy]

Well, as far as I know, Scalia has made good on his promise to never treat legislative history materials as an authoritative expression of Congressional intent, although I believe that he has signed onto some opinions that use those materials as such.

[Brad]

Justice Breyer's refusal to abide by the holding of Apprendi is one of the more notorious examples. And he even got the last (penultimate?)* laugh with his opinion in Booker, which was pretty clearly an effort to nullify the so-called merits majority.

*We'll have to see how Rita and Claiborne turn out, of course.

[joe]

"Both are shameful human beings."

Oh, put a lid on it, LAK.

[LAK]

"Put a lid on it?"

Are you 90 years old Joe? I think that is the first time anyone has ever brought out the "put a lid on it." Next are you going to tell me to "go get bent?"

Ashcroft was the worst AG that our country has ever had. When the shit hit the fan he crumbled to politics and fear. He abdicated his oath to uphold the constitution. And Nino? the guy wants to shove his Catholisism, or rather allow otehrs tho shover theirs, down all of our throats through the pretext of a nonsensical form of constitutional interpretation that is mired in our understanding of the world as it was 230 years ago.

Again, those guys are shameful and an embarassment to the U of C. And zealots like Scalia should not be allowed on the High Court. Hamilton spins in his grave every time that extremist opens his mouth.

[Larry Rosenthal]

Section 3501, by its terms, applies only to prosecutions undertaken by the federal government or the District of Columbia. Of the post-Dickerson Miranda cases, only Patane was subject to section 3501, and the question whether Patane's statement should have been suppressed (the only question addressed by section 3501) was not presented to the Court in the government's petition for certiorari, nor was it fairly included within the question presented by the petition (which addressed only the admissibility of the physical evidence obtained as a consequence of the statement). Thus, Justice Scalia has not had an opportunity to apply section 3501 since Dickerson.

Larry Rosenthal
Chapman University School of Law