Supreme Court (?) sloppiness

[Mark Tushnet]

In reading the Law Week report of last week's South Central Bell Telephone Co. v. Alabama, I found the following in Justice Breyer's opinion for the Court:  "In *Richards,* we considered an Alabama Supreme Court holding that state-law principles of res judicata prevented certain taxpayers from bringing a case [and here's the interesting part] (which I will call Case Two) to challenge on federal constitutional grounds .  .  .  ."  Is this the residue of a bench memo, a prior dissent from a cert. denial that persuaded others to grant cert., or simply Law Week's mistaken transcription?  If it's something like one of the first two possibilities, I wonder about the proposition that the Court's reduction in caseload has enabled the justices to be more careful and painstaking in what they do.

Mark Tushnet
Georgetown University Law Center
   202-662-9106
   (fax) 202-662-9055
tushnet at law.georgetown.edu