Steve:
THE REVERSE, OVERTURN & OVERRULE DEBATE
Short Answer: Use “overrule,” not “reverse” or “overturn.”
Other than an appeal to accuracy and intellectual honesty, I have no dog in the topic fight. The biggest trouble I had with the high school topic and various court related plans and counterplans, was that the fundamental issue addressed already in the blog was ignored all year long. Technically, the loose use of terms like “reverse,” “overturn,” and “overrule,” forms the basis for an educational slippery slope that might well plague the topic writers at the most fundamental level.
One reason I sent you the Rules was so that you could see for yourself HOW cases get to the Court. Another reason is to point out the possibility of an error cropping up in a topic-writing process that involves crucial plan action methodology when applied to the Supreme Court. I guess the point to be raised, and thought about at the outset in crafting Supreme Court Topic Resolutional Language is:
What can and does the Supreme Court actually do to FORMER decisions that Affirmative teams believe should be changed?
Reading the e-debate discourse reveals that the most likely scenario of a Resolutional wording that is possibly destined to develop a favorable vote from the community is a topic with a list of older decisions to be reversed/overruled/vacated/eliminated, etc.
My primary point is that it seems like the correct terminology to be used in crafting the resolution should be “overrule,” not “reverse” or “overturn.”
Let me begin this rant with the paradigm example of a Supreme Court decision in which CHANGE from a former decision was announced as the Court’s Mandate. In Brown v. Board of Education, the Supreme Court’s DECISION was to reject the language used in crafting the “separate but equal” doctrine of Plessy v. Ferguson. Note that the Supreme Court did NOT “overrule” or “overturn” the Plessy v. Ferguson CASE. I have highlighted the operative language from the mandate of the Brown Decision:
347
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for
Negroes could not provide them equal educational opportunities, this Court
relied in large part on "those qualities which are incapable of objective
measurement but which make for greatness in a law school." In McLaurin v.
Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to
a white graduate school be treated like all other students, again resorted to
intangible considerations: ". . . his ability to study, to engage in
discussions and exchange views with other students, and, in general, to learn
his profession." [347
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system." 10
Whatever may have been the extent of psychological knowledge
at the time of Plessy v.
We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. 12
Because these are class actions, because of the wide applicability of this
decision, and because of the great variety of local conditions, the formulation
of decrees in these cases presents problems of considerable complexity. On
reargument, the consideration of appropriate relief was necessarily
subordinated to the primary question - the constitutionality of segregation in
public education. We have now announced that such segregation is a denial of
the equal protection of the laws. In order that we may have the full assistance
of the parties in formulating decrees, the cases will be restored to the docket,
and the parties are requested to present further argument on Questions 4 and 5
previously propounded by the Court for the reargument this Term. 13 The Attorney General [347
It is so ordered.
Point is that the Plessy Decision was not “reversed,” “overruled” or “overturned” by the Supreme Court in Brown; rather, the Court announced in its ORDER that the contrary “language” used in Plessy was “rejected.”
Though any number of Law Review Articles and Scholars use the “reverse,” “overrule” and “overturn” language, my heartburn with high school plan language using these terms stemmed from the fact that what the Supreme Court does in reality may well be far different than what the world thinks the Court does:
The Supreme Court can reverse or overturn a decision of a State Supreme Court or of a Circuit Court of Appeals in an appropriate case that is then in front of the Court, but technically, after the final mandate in a particular, individual case becomes FINAL (post-rehearing time deadline expires (Rule 44)), the Supreme Court cannot (for jurisdictional reasons), and (I think, though other decisions may use different language) does not “reverse” or “overturn” past precedents or Supreme Court Decisions or Cases.
Going to another decision, the Brandenberg Case dealing with the First Amendment, the “overrule” language is used by the Supreme Court in its opinion in dealing with a prior “precedent” (Whitney) that the Supreme Court decided to abolish. Again, the relevant language is highlighted.:
395
APPEAL FROM THE SUPREME COURT OF
No. 492.
Argued February 27, 1969.
Decided June 9, 1969.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to
1920, identical or quite similar laws were adopted by 20 States and two
territories. E. Dowell, A History of Criminal Syndicalism Legislation in the
Measured by this test,
Accordingly, we are
here confronted with a statute which, by its own words and as applied, purports
to punish mere advocacy and to forbid, on pain of criminal punishment, assembly
with others merely to advocate the described type of action. 4 Such a statute falls within the condemnation of
the First and Fourteenth Amendments. The contrary teaching of Whitney v.
Reversed.
“Overrule” as used in Brandenberg,
refers to the vacating or disassembling of the prior Whitney
precedent. “Reversed” refers to the
exact result that the Court uses to dispose of the matter then being
decided in the Brandenberg case.
In the case then in front of the Court, the lower court (Ohio Supreme Court) had issued a decision in favor of one side and not the other. If the Supreme Court had agreed with the decision of the Ohio Supreme Court, the result would have been obvious, the United States Supreme Court would have AFFIRMED the Ohio Supreme Court’s decision. It could have done so based upon the reasons cited by the lower court, or for reasons and based upon a rationale decided by the Supreme Court and announced in the written opinion.
By contrast, the United States Supreme Court did affirm the Ohio Supreme Court, nor did it “reverse” or “overturn” the Whitney decision, it “overruled” that decision.
Let me use the Korematsu Decisions as an example on the “reversal” language issue. My hypothesis is that neither the lower court decisions affirming the conviction and sustaining the Constitutionality of the segregation policy, nor the holding of the Supreme Court in either of the two Korematsu Decisions (See, TOYOSABURO KOREMATSU v. UNITED STATES, 319 U.S. 432 (1943); and compare, TOYOSABURO KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944)) can be “reversed” or “overturned.”
Korematsu is OVER for two reasons. First, the
Mandates of the Court expired in 1943 and 1944 and no possibility exists that
the Supreme Court COULD bring that case back for re-hearing or
re-argument. See, Supreme Court Rule 44 (1) “Any petition
for the rehearing of any judgment or decision of the Court on the merits shall
be filed within 25 days after entry of the judgment or decision, unless the
Court or a Justice shortens or extends the time.”
Second, even if the generic “savings clause” (“unless the
Court or a Justice shortens or extends the time”) could be used to bring the
case itself back into play, since Mr. Korematsu died in March of last year, the
time for anyone else to step into Mr. Korematsu’s shoes expired in
October. Rule 35 (1) “If
the substitution of a representative of the deceased is not made within six
months after the death of the party, the case shall abate.”
In fact, one reason why the Korematsu parties/heirs proceeded through a special writ to achieve some form of “compensation” in the District Court (which was ultimately granted), was because the main decision(s) was/were “done.”
Hence, as among the terms
“reverse,” “overrule,” or “overturn,” I
would advocate the use of the term “overrule” as applied to long ago decided
“precedents” in any laundry list of decisions type topic which gets drafted.