The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona)

66 Pages Posted: 25 Jul 2010  

Barry Friedman

New York University School of Law

Date Written: July 23, 2010

Abstract

Over the last few years – and especially following the 2006 Term – commentators have criticized the Supreme Court for engaging in “stealth overruling.” This article examines the phenomenon, trying to ascertain why the justices engage in the practice and how we should feel about it. The article focuses on the gradual overruling of Miranda v. Arizona, because here tangible evidence is available about the benefit to the justices – and costs to the rest of us – of the practice of stealth overruling. The article demonstrates that by engaging in stealth overruling the justices are able to see that their will is done by lower courts and public officials, yet avoid any negative effect from public opinion. While the strategy benefits the justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling tempers the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law solely in the justices’ hands.

Suggested Citation

Friedman, Barry, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona) (July 23, 2010). Georgetown Law Journal, 2010; NYU School of Law, Public Law Research Paper No. 10-42. Available at SSRN: https://ssrn.com/abstract=1647745

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Paper statistics

Downloads
534
Rank
41,266
Abstract Views
4,305