Judicial supremacy versus constitutional supremacy

[Mark Tushnet]

I take it that this identifies the problem associated with the
Brennan/Marshall/Scalia/Thomas (and Meese) position.  John Rogers sketches a
defense available to Brennan and Marshall (at least), with his exception for
decisions that continually warrant overruling.  (I have a somewhat different
defense, in Making Constitutional Law.)  For them, capital punishment was
unconstitutional under all circumstances, and so it made sense to dissent in
every case in which the Court refused to invalidate a death sentence.  I wonder,
though, whether one could come up with a defense of the proposition that Simmons
v. South Carolina, but not other decisions finding flaws in the death penalty
process, was so wrong that it (but not those other decisions) warranted
overruling.  (I have to say that, as a non-specialist on capital punishment, I
didn't immediately know what the holding in Simmons was.)

John Rogers wrote:

> Isn't it a little pejorative to characterize as "switch[ing] their votes"
> the judges' acceptance as binding of a decision to which they originally
> dissented?  Isn't that exactly how stare decisis is supposed to work?  Of
> course under each judge's view of stare decisis law there may be some
> decisions that continually warrant overruling, but that has to be
> exceptional in order for us to accept the general notion of horizontally
> binding precedent.
>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: tushnet.vcf
Type: text/x-vcard
Size: 242 bytes
Desc: Card for Mark Tushnet
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010320/8f2972f9/tushnet.vcf