Digging up a discredited precedent

Intriguing item from the “national treasure” (called such by Rachel Maddow) SCOTUSblog:

Digging up a discredited precedent

Tuesday, June 9th, 2009 3:07 pm | Lyle Denniston |

Sometimes, it is a mystery how a prior Supreme Court decision — not well known except to real insiders – is dug up, perhaps by a law clerk, and given new notoriety.  Such has been the fate of U.S. v. Halper, a constitutional ruling that stood for less than nine years until it was largely cast aside as “ill considered” and had “proven unworkable.”

Chief Justice John G. Roberts, Jr., used Halper in dissent on Monday to flay a majority for another ruling that he clearly deemed ill considered and unworkable.  Halper’s fate, he said, was “a cautionary tale,” and added: “I believe we will come to regret this decision as well.”  He was writing for the dissenters in Caperton v. A.T. Massey Co. (08-22), in which the majority sought to lay down a variable standard on when an elected judge is constitutionally obliged to disqualify from participating in a case involving a political benefactor.

The jurisprudential linkage between Halper and Caperton, however, was not obvious.  In fact, Halper is not mentioned in the briefs in Caperton.

Someone in the courthouse must have remembered it, though.  And it may well have been not a current law clerk, but a former one.  Indeed, it may well have been John G. Roberts, Jr., the onetime Rehnquist clerk and now, of course, the Chief Justice (and the main dissent’s author in Caperton).

. . .

You can read the rest of the post here.

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