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Monday, May 26, 2014

The Finally Fallible Court

Is this the year when the Supreme Court finally becomes fallible?

Consider these recent events, all within the last month or so:          

  • Justice Scalia writes, and later corrects, a dissent that trumpets a misreading of his own prior opinion.
  • Justice Kagan writes, and later corrects, a dissent with a mistaken assertion regarding Jewish-American history.
  • The Court calls for a response in a case asking, in effect, whether a prior decision accidentally denied a prisoner habeas relief.
  • After dismissing a number of cases as mistaken grants, the Court apparently establishes a double-check policy before granting cert.
  • Professor Lazarus posts a much-discussed article showing that the Court has long been sub silentio revising its opinions without notice.

Meanwhile, the Court is hurtling toward another epic End of Term.  With just over a month go to, major decisions are expected on recess appointments, the treaty power, cell phone searches, capital punishment, corporate religious exemptions, and the future of the TV industry—among many others.

The proofreading at 1 First St. must be getting intense.

Now, I am pretty sure that the justices have always been human, yet something new seems to be happening.  I think it’s this: in small but meaningful ways, the Court is being forced to acknowledge its own fallibility.

The above is cross-posted from Re's Judicata.


Posted by Richard M. Re on May 26, 2014 at 09:30 PM in Judicial Process | Permalink


What about Brown, bf? Would segregation and interracial marriage be dealt w/o the courts too? Or, is this a selective game?

We have judicial review in this country. Social issues being affected by court decisions was known to be basic to this country back to the days of Tocqueville in the 1830s.

Anyway, why not say "responsible" media, like used for "bloggers," instead of singling out a certain media source?

Posted by: Joe | May 28, 2014 2:40:29 PM

They're acting more and more like responsible bloggers, and less and less like the New York Times. This is a good thing.

Posted by: Beldar | May 27, 2014 10:25:52 PM


Sorry, you socons got just what you had coming to you. You stuck your noses into birth control, as you do with other issues that are none of your business like gay marriage, with Griswold v. Conn. You not only got your a$$ handed to you by the SCOTUS, they created the "right to privacy" on Griswold which lead to Roe v. Wade.

Be careful which religious beliefs you turn into law; they may come back to bite you again.

Posted by: Joseph Corlett | May 27, 2014 10:10:04 PM

We need no further proof of court fallibility than Roe v. Wade. Without the courts, this case would have been settled politically years ago. Now the courts are at it again, with gay marriage. If the courts didn't weigh in, this would be solve politically, however, the courts don't believe that's possible and I fear we'll be fighting this 50 years from now because of them.

Posted by: bflat879 | May 27, 2014 9:17:04 PM

Well, good. Maybe they could start atoning for their sins by revisiting the Kelo and Filburn decisions.

Posted by: DocinPA | May 27, 2014 8:55:36 PM

I understand the Justices are fallible but I wonder if this isn't also a reflection on the meticulousness of the Justices' law clerks.

Posted by: DRJ | May 27, 2014 8:02:25 PM

But it was Mr. Justice Jackson who wrote, "we are not final because we are infallible, we are infallible because and only because we are final.

Posted by: Stephen Houghton | May 27, 2014 7:28:07 PM

Nobody's perfect.

Posted by: faxhorn | May 27, 2014 7:24:16 PM

It seems to me that the Court often acknowledges its fallibility. It just usually doesn't have the Supreme Court press focusing on it.

Posted by: Orin Kerr | May 27, 2014 1:23:03 AM

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