Document Type

Book Chapter

Publication Date



[C]oncern over the Court's manner of overruling a past decision raises some basic questions concerning judicial craftsmanship in overruling opinions. What special functions, if any, should the Court seek to accomplish with an overruling opinion? What techniques of opinion writing have been used in the past to fulfill these functions? Did the majority opinion in Gideon (372 U.S. 335) fail to perform the proper function of an overruling opinion? Would it have done so by giving Betts (316 U.S. 455) a "more respectful burial"? These are, of course, questions concerning method, not result. Admittedly, as Dean Rostow recently pointed out in answering current criticisms of the Court's craftsmanship, "opinion writing is only one phase of the judicial craft not the whole of it nor even its most important feature." Yet, as even the Dean acknowledged, opinion writing remains a "vital phase" of the judicial process. It is, moreover, a phase which, if the frequency of separate opinions is any indication, causes great concern within the Court itself.

Although only occasional opinions by individual Justices have expressly recognized this special problem of the overruling case, an examination of the opinions for the Court in these cases suggests that it has not been overlooked. The Court over the years has employed certain "techniques" in overruling opinions that, as a general pattern, tend to preserve the impersonal qualities of the judicial process by emphasizing factors other than the vicissitudes of changing personnel.


Reproduced with permission