Justice Stevens went after Alito in a case released today on not respecting "stare decisis"

[usregimechange]

Footnote # 5: "In his concurrence, Justice Alito assumes that my consideration of the rule of stare decisis in this case is at odds with the Court’s recent rejection of his reliance on that doctrine in his dissent in Arizona v. Gant, 556 U. S. ___ (2009). While I agree that the reasoning in his dissent supports my position in this case, I do not agree with his characterization of our opinion in Gant. Contrary to his representation, the Court did not overrule our precedent in New York v. Belton, 453 U. S. 454 (1981) . Rather, we affirmed the narrow interpretation of Belton’s holding adopted by the Arizona Supreme Court, rejecting the broader interpretation adopted by other lower courts that had been roundly criticized by judges and scholars alike. By contrast, in this case the Court flatly overrules Jackson—a rule that has drawn virtually no criticism—on its own initiative. The two cases are hardly comparable. If they were, and if Justice Alito meant what he said in Gant, I would expect him to join this opinion."

http://www.law.cornell.edu/supct/html/07-1529.ZD.html


This prompted Justice Breyer to join every bit of Steven's dissent except for this one footnote: "I join Justice Stevens’ dissent except for footnote 5. Although the principles of stare decisis are not inflexible, I believe they bind the Court here" (Justice Breyer, dissenting).

http://www.law.cornell.edu/supct/html/07-1529.ZD1.html


I have never seen a judge split their joining of an opinion to not join a single footnote. Steven's seemed to be a bit disappointed in Alito's intellectual firepower here.

[usregimechange]

1. Steven's brief description of the case:

Today the Court properly concludes that the Louisiana Supreme Court’s parsimonious reading of our decision in Michigan v. Jackson, 475 U. S. 625 (1986) , is indefensible. Yet the Court does not reverse. Rather, on its own initiative and without any evidence that the longstanding Sixth Amendment protections established in Jackson have caused any harm to the workings of the criminal justice system, the Court rejects Jackson outright on the ground that it is “untenable as a theoretical and doctrinal matter.” Ante, at 6. That conclusion rests on a misinterpretation of Jackson’s rationale and a gross undervaluation of the rule of stare decisis. The police interrogation in this case clearly violated petitioner’s Sixth Amendment right to counsel.

http://www.law.cornell.edu/supct/html/07-1529.ZD.html