The Last Word

Journal of Appellate Practice and Process, Vol. 11, No. 2, pp. 229-283, Fall 2010

George Mason Law & Economics Research Paper No. 10-15

56 Pages Posted: 8 Mar 2010 Last revised: 14 May 2011

Ross E. Davies

George Mason University - Antonin Scalia Law School, Faculty; The Green Bag

Date Written: March 7, 2010

Abstract

Once in a great while a member of the Supreme Court tries to get the last word. “Last word,” that is, in an official sense – a late-breaking opinion issued by a Justice acting as a Justice. Not informal last words such as anonymous stabs at colleagues via the press, or extemporaneous ejaculations from the bench, or post-retirement disclosure of changes of heart. Official, juridical attempts to get the last word come in two forms: (1) the surprise opinion, meaning a separate opinion (a concurrence or dissent) issued by a Justice without reasonable notice to the other Justices, after they have publicly committed themselves to a disposition of the case that does not, of course, account for the late-breaking opinion, and (2) the surprise revision, meaning a Justice’s significant alteration of an opinion after other Justices have publicly committed themselves, presumably at least in part in reliance on the original version.

As a practical matter, Justices who want the last word can always get it, because there is no stopping them from opining on whatever they want. But as an equally practical matter, countervailing forces tend to frustrate efforts to get the last word. A last-word opinion, it turns out, is bad for everyone. It does not achieve the results sought by its author, and it does tend to harm the author. And it usually harms the Court as well. Part I of this article offers five examples of this last-word dynamic. Part II points out similarities among those cases and suggests s few conclusions, including explanations for the persistence of this sort of behavior. Part III considers measures to prevent these seemingly rare but invariably useless and harmful frolics.

Keywords: Andrew Jackson, Benjamin Curtis, Chief Justice, Dred Scott, Felix Frankfurter, G. Edward White, Henry Baldwin, John McLean, Joseph Story, Passenger Cases, Peter Daniel, Precedent, Reporters, Roger Taney, Seniority, Silent Acquiescence, Slavery, Vietnam, William Douglas

JEL Classification: C70, C72, D70, K40, K41

Suggested Citation

Davies, Ross E., The Last Word (March 7, 2010). Journal of Appellate Practice and Process, Vol. 11, No. 2, pp. 229-283, Fall 2010; George Mason Law & Economics Research Paper No. 10-15. Available at SSRN: https://ssrn.com/abstract=1566468

Ross E. Davies (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

The Green Bag ( email )

6600 Barnaby St., NW
Washington, DC 20015
United States

HOME PAGE: http://www.greenbag.org

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