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99 Geo. L.J. 1 (2010-2011)
The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona)

handle is hein.journals/glj99 and id is 3 raw text is: ARTICLES The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona) BARRY FRIEDMAN* Over the last few years--and especially following the 2006 Term--commentators have criticized the Supreme Court for engaging in stealth overruling. This Article examines the phenomenon, trying to ascertain why the Justices engage in the practice and how we should feel about it. The Article focuses on the gradual overruling of Miranda v. Arizona because here tangible evidence is available about the benefits to the Justice---and costs to the rest of us--of the practice of stealth overruling. The Article demonstrates that by engaging in stealth overruling the Justices are able to see that their will is done by lower courts and public officials, yet they avoid arousing negative public opinion. While this strategy benefits the Justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling suppresses the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law largely in the Justices'hands. TABLE OF CONTENTS INTRODUCTION .......................................... 2 I. WHAT IS STEALTH OVERRULING? .......................... 6 A. OVERRULING ... 8 B. STEALTH ....................................... 13 II. THE CASE OF THE DISAPPEARING MIRANDA RULE ............... 16 A. THE GRADUAL OVERRULING OF MIRANDA .................. 16 B. DOES STARE DECISIS COMPEL RETAINING MIRANDA? ........... 25 * Jacob D. Fuchsberg Professor of Law, New York University School of Law. @ 2010, Barry Friedman. I would like to thank the many colleagues who read and commented on a draft of this Article or offered assistance in its drafting: Rachel Barkow, Derrick Bell, Oscar Chase, Lee Epstein, Cindy Estlund, Dan Hulsebosch, Azziz Huq, William Landes, Richard Posner, Lori Ringhand, Fred Schauer, Steve Schulhofer, Cathy Sharkey, Peter Smith, Geoffrey Stone, George Thomas, and Charles Weissel- burg. The project was helped immeasurably by participation at the University of Chicago-Northwestern Judicial Behavior Workshop, a Faculty Colloquium at Washington University School of Law in St. Louis, a workshop at the Department of Politics of William and Mary University, and the NYU Works-in-Progress Workshop. Molly Nixon-Graf and Sam Raymond did great work on the media studies and Michael Pollack was instrumental in unearthing the stealth literature. A huge thanks to Katharine Goodloe and Alex Mindlin for extraordinary research and advice. I am grateful for the support of the Filomen D'Agostino and Max E. Greenberg Research Fund. 1

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