From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Stare Decisis
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Tue, 28 Jul 1992 11:17:49 GMT

In article <1992Jul27.163928.10705@aplcen.apl.jhu.edu> akbloom@aplcen.apl.jhu.edu (Keith Bloom) writes:

>I may have misread your previous article.  The question under
>discussion is, in what cases has the Supreme Court explicitly
>overruled one of its prior holdings on a matter of law.

I think I'm clear on this.

>  What I
>thought you were saying was that Brown overruled Plessy v. Ferguson,
>but on a question of fact, not of law; i.e., that separate but equal
>facilities could exist in the field of education.

You don't "overrule" factual findings--you overrule a prior rule of law.

As a matter of law, separate still can be equal. As a matter
of fact in the Brown case, separate was not equal, and the sociological
sources adduced in Footnote 11 cast doubt on whether separate ever can be
equal when we're talking about segregated educational facilities.

>(Plessy wasn't
>about education, but everyone assumed that it applied there as well as
>to transportation.)  I said you were being "too picky" because there
>was no practical benefit in making the distinction, since most legal
>principles are based in one way or another on factual issues.

Well, I think you are unclear on how matters of law and fact are
distinguished for the purpose of applying precedent. To say "most legal
principles are based in one way or another on factual issues" tends to
imply that there's really no distinction. But there is one--a distinction
between rules and fact. Sometimes, the application of the rules (the law)
leads to gross inequity--it is for these reason that courts are granted
equity powers as well as legal authority. (Indeed, Article III says that
the federal courts have jurisdiction over all federal-question cases *in
law or equity*).

>It appears, though, that you are saying that Brown did not explicitly
>overrule Plessy at all.

I'm saying this too. 

>I find your reasons for saying it didn't
>unconvincing.

Sorry. I only report the cases as they are. Brown doesn't overrule Plessy.
Did you read the sources I cited on this case?

>What seems to me significant is that Warren
>specifically said that the Plessy doctrine applied to the Brown case,
>where it did *not* apply in other cases in which the courts overturned
>discrimination.  Therefore, the plaintiffs should have lost under
>Plessy.

Unless the facts showed that the rule was unjust in this particular kind
of case. 

>But the Supreme Court found for the plaintiffs.  How could
>that be, if they were not overruling Plessy?

Well, for one thing, they could be applying the equity powers granted to
them under the Constitution.

>How explicit does the
>Court need to be?

Remember how you reminded me, supra, of the topic of this thread: How
often does the Court explicitly overrule a prior decision? My feeling is
that in order for the Court to be said to have explicitly overruled a
prior decision, it must be explicit. By definition.

>That the Court grounded its opinion on sociological analysis is surely
>interesting, but I don't believe it refutes the assertion that it was
>overruling Plessy v. Ferguson.

I think you may be unclear on what it takes to overrule a prior case.
The holding in Brown rests on particular facts about segregated schools,
not rules of law about them. If those facts changed, the prior rule--that
of Plessy--could come back into effect. (I say "could" rather than "would"
because Plessy can now, in 1992, be considered to be no longer good law--
to have been overruled by 40 years of Brown's progeny, but not explicitly
overruled by Brown itself.)

>I assume that judges are not
>mathematicians and are not interested in propositions which are merely
>vacuously true.

Why do you assume this? Deducing from general propositions and inducing
from particular ones is something that judges do. I don't know what you
mean by "vacuously" true. 

>  When Plessy said, in effect, that "separate but equal
>is OK", it implied that there *was* such a thing as separate but
>equal.

Right.

>That's the implicit factual basis of Plessy's legal doctrine.

But is this "vacuously" true? Maybe it is, but if so it undercuts your
assumption that judges "are not interested in propositions which are
merely vacuously true."

>When Chief Justice Warren held that, in the field of education at
>least, there was no such thing as separate but equal, he denied the
>factual basis of Plessy, and therefore the legitimacy of its legal
>doctrine.

You were correct up until the "therefore." While legal principles are
indeed grounded in fact, this does not make a legal principle the same
thing as a factual finding. Warren clearly avoided saying that, as a
matter of law, separate is not equal. Now, do you suppose Warren did not
know what he was doing?

I think part of the problem here is that you are unclear on how lawyers
use the fact/law distinction. When I look over your posting, it seems to
me to be this particular issue that you're tripping up on. 

>Warren essentially said as much, although of course he
>didn't put it in those terms.

As you said above, the topic is about *explicit* overruling of prior cases.
Looks as if you're talking about *implicit* overruling here.

>But he did say that language in Plessy
>which implied the existence of separate but equal facilities in
>education was "rejected."

Right.

>To me, that sounds like he's overruling
>Plessy.

To a lawyer--especially one like me, who actually does do Constitutional
law--it doesn't sound like any such thing. What Warren is doing is
rejecting the *factual* claim about the possibility of separate-but-equal
educational facilities for black students. He is not saying that, as a
matter of law, separate could never be equal. (Indeed, is there any doubt
that prestigious black colleges, like Howard and Spellman, are the equal
of countless other colleges?) 

>I don't know why the Court placed so much emphasis of sociological
>evidence in Brown v. Board of Education.

I know why. It's because they were basing the decision on a factual
finding rather than on a legal doctrine. This was highly criticized at the
time. But I haven't the slightest doubt that the Court reached the right
decision.

>Possibly the two books you
>mentioned (neither of which I have) explain this.  It's probably
>unusual for the Court to cite large amounts of data from the social
>sciences in support of its rulings, but it's hardly unique;  didn't
>Brandeis use socioeconomic data in his dissents in the economic
>regulation cases?

Nobody said it was unique. I don't recall Brandeis's citation of such
data, but it wouldn't surprise me. It should be noted, however, that 
dissents, by their very nature, don't overrule anything.

>>Right. Brown v. Board of Education specifically raises the issue of
>>whether the doctrine of separate but equal, articulated in Plessy, is
>>valid.
>
>You say this, and then you say that Brown did not overrule Plessy.
>I'm bewildered.

I think this is because you have been holding on to an understanding of
the distinction between facts and law in legal opinions that does not map
to the distinction that is actually used.

>The Court raises the issue, addresses it, and finds
>in favor of the plaintiffs, even though the Court admits that the
>doctrine requires a ruling against them.  In what sense is this *not*
>overruling Plessy?

In the sense of not articulating an explicit adoption of a new rule of law
and rejecting an old rule. The thing about Warren's comment, which you
quote above, is that he does not *categorically* reject the doctrine of
separate-but-equal. He only rejects it within the field of education, and
only because of the sociological findings of Clark and Myrdal. In my
Constitutional Law class, Prof. Charles Alan Wright asked us a
hypothetical question--what would happen if, in another case, evidence
from Clark and Myrdal (or their modern equivalents) proved to a reasonable
certainty that the practice of segregating schools did *not* cause the
sociological and psychological damage that Brown refers to? The answer
came immediately to us first-year law students--Plessy would suddenly be
revived as good law within the field of education! *If Plessy had been
overruled as a matter of law, this could not happen.*

>Which is my point.  Separate but equal--which was a legal doctrine-- 
>did have a factual basis.  Warren said in Brown that this factual
>basis was bogus.  Therefore, the legal doctrine is no longer valid.

This is a poor summary of the reasoning of Brown. Warren does not say
that, as a matter of law, separate but equal is bogus. He says that,
factually, within the field of education, separate but equal is bogus.
This is the predicate for the application of a federal court's equitable
powers. Are you familiar with the distinction between law and equity?

>>When you say "also," what are you referring to? I don't think anyone's 
>>"thrown out" anything. 
>
>By "throw out", I simply meant discard it from the list of cases in
>which the Supreme Court explicitly overturned a prior decision.

Again: recall that Mapp v. Ohio is the adoption of a judge-made rule of
law, not of a new interpretation of the Constitution. Nobody in Mapp
believes that the Constitution guarantees the exclusionary rule.

>I brought up Mapp based on the assumption that you were claiming that
>Brown overruled Plessy, but not on a question of law.  Mapp said that,
>based on experience, it was necessary to apply the Weeks doctrine to
>the states in order to guarantee Fourth Amendment protections.

Right. It does not say, as a matter of law, that the Fourth Amendment
itself requires exclusion of illegally seized evidence. (This would be a
harder claim to make than the claim that the 14th Amendment is violated by
segregation.)

>Wolf
>had said that the Fourth Amendment did apply to the states, but did
>not require them to use the exclusionary rule.  Thus, one could claim
>that the Court did not overrule Wolf on any question of law, but only
>on the factual question of whether the exclusionary rule was necessary
>to enforce compliance.  That, to me, is too narrow a distinction to be
>useful.

Well, as you say, you're not a lawyer. What's useful to you may be
different from what is useful in doing law.

To be specific, this distinction that you think is "too narrow" is
precisely the distinction that allows (and explains) the subsequent
Supreme Court cases that explain the scope of the exclusionary rule.
See, e.g., U.S. v. Leon.


--Mike



-- 
Mike Godwin,     |"Crime is contagious. If the Government becomes a law-
mnemonic@eff.org | breaker, it breeds contempt for law; it invites every
(617) 864-0665   | man to become a law unto himself. It invites anarchy."
EFF, Cambridge   |         --Brandeis, J., dissenting in Olmstead v. U.S.  
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