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The just-ended term of the U.S. Supreme Court demonstrates the powerful effect of the two Bush appointments as major 5-4 opinions begin to reshape American constitutional law over the protests of court liberals and centrists. So far, those opinions have only cautiously overruled precedent. As the new majority consolidates, it is likely that this caution will evaporate and that numerous landmark decisions, including the embattled Roe v. Wade and even Brown v. Board of Education will not just be gutted, but will fall before the activist axe. The court may emulate the experience of the Michigan Supreme Court, which has systematically and explicitly overruled numerous precedents that did not truly reflect “the law.” Certainly, the zeal to “get the law right” and to disclaim prior decisions reflects the thinking of justices Clarence Thomas and Antonin Scalia, who seek legal purity in the form of divining the “original intent” of the Constitution’s founding fathers. Indeed, Scalia berates Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. for not sharing their disdain for mere judicial precedent, often decades-old precedent. As Thomas noted in dissenting in a denial of medical care to an inmate case, “I have repeatedly stated that the Eighth Amendment’s prohibition on cruel and unusual punishment historically concerned only injuries relating to a criminal sentence,” not to such issues as brutality by prison guards or general deplorable prison conditions. What he meant by “historically,” is simply that since there were no prisons in 1791, the Constitution was inapplicable. Thomas and Scalia are not alone. In an opinion delivered on the last day of the Supreme Court’s session, Justice Anthony Kennedy upset a series of strong and clear precedents ranging back to 1911 on the same rationale. So far, the embattled minority of justices have vigorously defended the principle of stare decisis (literally to “stand by” prior rulings) to no avail. The Michigan Supreme Court’s experience with revolution is instructive. Although that body deals primarily with interpreting state law rather than federal statutes or the U.S. Constitution, the bitterness of the divide has led to rancorous name-calling and ad hominem attacks. Thus, a recent decision, Rowland v. Washtenaw County Road Commission, 731 N.W.2d 41 (Mich. 2007), denounced the “canard that this court has overruled cases at an alarming rate.” In response, a dissent claimed that it was a true “canard” to overrule some 60 cases in five years and claim “that nothing unusual is happening,” while undermining the rule of law and discombobulating public expectations. Consequences There are consequences to overruling precedent. Whenever a judicial revolution occurs, a major question is whether to apply the new principle of law to either or both pending cases and to previously decided ones. In theory, if the old law was not only wrong, but always wrong, then anyone whose rights and duties were affected by it should be entitled to a new day in court. This actually occurred in the landmark U.S. Supreme Court’s decision in Gideon v. Wainwright, which enabled all prisoners who had been convicted of noncapital felonies denied court-appointed counsel to seek new trials (most of the cases were settled). The Michigan Supreme Court has adopted a broad definition of “retroactivity,” thus calling into question numerous previously established rights. Indeed, a dissenter noted that, in essence, the majority contended that “attorneys should not rely on precedent predating the present court [or] anything predating the current majority.” Talk about revolution! While Supreme Court reinterpretation or annulment of precedent of course involves major shifts of American constitutional law, the wholesale attack on precedent in a state court cannot be dismissed, since many of the decisions directly affect the lives of litigants in “ordinary,” not dramatic, cases involving suits against the government, and negligence and breach of contract actions. Probably, apart from racial discrimination issues, more Michiganders will be affected by the revolution in their everyday lives. The success of the conservative(?) revolution in a large, industrialized “blue state” should be sobering. The notion that the judiciary should be above partisanship and personal ideology will be sorely tested at every level of government. The sense that all sorts of personal and civil rights are at risk is only heightened by the Jacobin search for legal “purity.” The ominous feeling of “what’s next” can only become pervasive. It is also worth nothing that the cases that have overruled precedents almost invariably involve significant rights and resulted in their diminution or created confusion about their meaning. It is clear, both from present tendencies in Michigan and emerging ones at its federal counterpart, that the revolution is at hand. It is cold comfort to realize that disdain for precedent can run the other way � future courts of a different hue may regard the new precedents as equally temporary. After all, revolution is inevitably followed by counterrevolution, But, changes in judicial personnel and philosophies take a long time to take hold. A last thought about revolution. Lenin said that “you have to break eggs to make omelettes.” A detractor noted, “So where’s the omelette?” As the Soviet experience demonstrates, breaking eggs often merely leads to nihilism � a sheer joy in breaking eggs � or, more dangerously, to an elite power grab in the name of democracy � or perhaps the law. Isidore Silver is professor emeritus of constitutional law and history at the City University of New York.

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