>> Thursday, January 21, 2010
I have more substantive thoughts here. On the point of Roberts's fraudulent "minimalism," I should also note this bit of comedy from Roberts's concurrence, explaining why he voted to overrule two (or, perhaps I should say, one and a half) precedents:
We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law. We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues.
See, if you think really hard about a case, the case is important enough to generate a lot of amicus briefs, and there's a "comprehensive dissent" signed by 4 justices, overruling precedents even if it's not necessary to decide the case is perfectly fine! This would seem to be a rather, ah, minimalist conception of "minimalism." What important overruling of a landmark precedent wouldn't qualify under this standard?
Not, of course, that I object per se -- better this than Roberts's usual routine of pretending he's not overruling precedents that he's overruling. But can we stop pretending that minimalism has any real content?