Does Overruling Require a Magic Incantation?

The Chapman Law Review is currently editing articles for our Miranda symposium issue. A professor asked us if we bought into the idea that Escobedo was not overruled. That was the case that the government relied on (and lost) in arguing the Miranda case. Miranda went the other way, but didn't ever actually say that Escobedo was overruled. Instead, it was held very narrowly to its facts.

I say bull.

It seems to me that court opinions are a very funny thing, because their legal force is purely about persuasion. Contrast this with statutes, which you have to accept as law no matter how poorly they're written, no matter how slim a majority they were passed with, no matter the change in the legal and political and social landscape, etc. We have theories on "deep" and "shallow" holdings (the depth of analysis that accompanies a holding) and "wide" and "narrow" holdings (the sheer number of factual instances the holding applies to). In close issues, courts will issue fractured opinions, and we have things like the Marks doctrine to help us determine whether and how much authority a plurality opinion has, whether and how much force Justice Kennedy's concurring opinions have as of late, whether his opinions are the governing ones as he sits in the middle of the other justices.

Personally, I find it all a lot of nonsense, saying certain opinions are "good law" or "bad law" and whatnot, when it comes to these close cases and schizophrenic courts. For example, in studying the religion clauses, particularly the establishment clause, I personally don't think that we have any governing court holdings--no "good law"--at all. Especially now that a couple seats on the court have changed--and especially since one of them was O'Connor's. When the Court can't set forth a definitive rule, then it's really not a rule in my eyes, it only gives a judgment as to the current case, and gives some sort of prediction (or not!) about how those justices might rule in the next case. Sure, that's true of any holding, to a degree. But when you get a lot of solidarity at the time of the ruling, it carries exponentially more weight. When a court is badly fractured, all the opinion(s) do is give lawyers an idea of some of the considerations that the court might look to--beyond that, it's a crapshoot.

Anyway, I digress. I think it is quite right that it is silly that a case should not be considered overruled unless those "magic words" are uttered. So, given what I've said above, you can probably guess that I would say that, if we're being intellectually honest, yes, Escobedo is overruled. But, it seems that in reality, people do like those magic words, and people like to maintain the fiction that cases and opinions can still have persuasive effect. It seems to me that law is philosophy for non-philosophers (aka, attorneys), and for some reason attorneys like having all these partially torn-down houses laying around so that they can scavenge bits and pieces from time to time as it suits them.

I learned recently that when the California Supreme Court grants review of a case, the appellate ruling is automatically vacated of all precedential value. Even if it is ultimately upheld. At first I thought that a bit drastic, but now I think it is quite a good idea. No sense in having shadow opinions of a case laying around.

In short, I think that in these close cases, all the Court is really doing is offering advisory opinions. The only reason they're not calling them that is because the Court isn't allowed to give advisory opinions. So we're stuck with the intellectual dishonesty of calling it "law" even though they're anything but.

As to Escobedo not being overruled, I say, in the words of John Stossel, "give me a break."