"FAUX RESTRAINT." Since I have an article critical of Antonin Scalia's flagrantly unprincipled affirmative action jurisprudence today, I should note that Scalia deserves credit for taking Roberts to task for his disingenuous "I'm not overturning the precedent, I'm just refusing to ever apply it" hair-splitting. (As a friend noted in email, with Alito it seems almost a neurosis -- what state will the Republicans lose in 2008 if Flast v. Cohen is overturned explicitly? He supposes that it's the counts of precedents overturned that matters; if relatively few precedents are explicitly overruled some people may be fooled into thinking that nothing is really changing even as major branches of doctrine are being significantly revised.) Walter Dellinger wrote recently that "But it's neither minimalist nor restrained to overrule cases while pretending you are not." Admittedly, as a skeptic I'm inclined to think of this kind of behavior as exemplifying minimalism rather than betraying it. But leaving aside the semantic issue, the overall point he's making is absolutely correct. The Court owes it to the public and role of the courts in a democracy to be honest about what it's doing. If it wants to overrule Stenberg v. Carhart or McConnell or Flast v. Cohen, it should do so explicitly. In the meantime, however, it's important not to be fooled when the Court declines to formally overrule a precedent it's completely gutting.
--Scott Lemieux
