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November 27, 2012

Is Alleyne a stare decisis sleeper about "super-duper precedents"?

Last month the Supreme Court granted cert in Allen Ryan Alleyne v. United States, in which the questions presented is simply "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled."  Because Harris is, of course, one of the holes in Apprendi jurisprudence, hard-core sentencing fans and Sixth Amendment gurus are jazzed about what the Alleyne case might mean for the division of responsibilities of judge and jury in criminal justice decision-making.

However, the notion of whether Harris "should be overruled" has me thinking Alleyne could be a sleeper case concerning the doctrine of stare decisis in constitutional law and practice.  Significantly, Harris did not create the constitutional rule that legislatures could allow sentencing judges to find facts by a preponderance of evidence to trigger the application of mandatory minimum prison terms.  Harris merely reaffirmed this constitutional doctrine in 2002; it was established back in 1986 in McMillan v. Pennsylvania (and the McMillan opinion suggested its holding was just a reaffirmation of constitutional rules first set out in the 1949 case of Williams v. New York).  In other words, Harris is not just a regular precedent: like Roe v. Wade and other controversial rulings often challenged and often reaffirmed, the constitutional doctrines allowing judges to find facts to trigger mandatory minimums arguably qualify as a "super-precedent." 

As some may recall (and as highlighted in this Essay by Professor Michael Gerhardt titled "Super Precedent") the idea of super-precedents has been sometimes espoused by defenders of Roe.  Indeed, with Roe clearly in mind, then-Senate Judiciary Chairman Arlen Specter asked then-SCOTUS-nominee John Roberts during his confirmation hearings whether he agreed there were "super-duper precedents" in constitutional law.  Though I do not fancy myself enough of a constitutional theorist to know whether super-precedents do or should exist, I do know that Alleyne tees up consideration of this idea perhaps as well as any case in recent memory.

November 27, 2012 at 08:48 PM | Permalink


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A super-precedent should have

1)external validation;

2)it should prove safe and effective in its goal;

3) it should have limited or harmless unintended consequences;

4)it should benefit large fractions of the population in a substantive way, perhaps even against vigorous initial opposition.

As a result it should only be reversed or violated in rare instances because it is such a great judicial achievement. The passage of time should add to its external validation and accumulate evidence of benefit.

Now, what did people say about Harris or Roe, again? One is a trivial case of prosecutorial stacking, the other a major national catastrophe from the unlawful usurpation of state powers by left wing, feminist, Federal lawyer Little Caesars, in their out of control insurrection against the Constitution. It our American mass murder of innocent viable people in their third trimester. Crimes against humanity do not qualify as a super-precedents.

Posted by: Supremacy Claus | Nov 27, 2012 11:04:09 PM

From footnote 13 of Apprendi: "Conscious of the likelihood that legislative decisions may have been made in reliance on McMillan, we reserve for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding."

It seems like that other day has already come and gone in the form of Harris. Thus, to now overrule Harris would be to undo a significant amount of jurisprudence upon which many legislative decisions have been based. On the other hand, if the Court is going to overrule Harris, there is no time like the present. The precedent only gets more "super" as time passes.

Posted by: Kevin Bennardo | Dec 4, 2012 9:44:54 AM

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