In the May 2011 issue of the ABA Journal, Richard Brust comments on the U.S. Supreme Court's emergent "stealth" method of overturning precedent.
In today's environment of criticism against "judicial activism," he argues, the Justices are leery of directly and overtly overturning precedent as in the past. Instead, their opinions lay "time bombs," with the implicit invitation for continued challenges, and/or an invitation for the Legislature to amend the law. Or the Justices may be "actively minimalist," in which the Court incrementally overturns laws, never overtly stating where they are going but apparently working toward some end goal nonetheless. Finally, the Court may end up being the "obfuscator of last resort," in the words of Justice Antonin Scalia, "distort[ing] ... jurisprudence and leav[ing] it in shambles... [i]nstead of clarifying it."
Justice Scalia appears to be the sole "vox populi" on this issue. He has castigated the plurality or majority in concurrences and dissents, arguing that the Court beats around the bush too much: "We must surrender to logic and choose sides," and either "apply the precedent or repudiate it." Hein v. Freedom from Religion Foundation, Inc. Amen, your Honor.
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