1968—What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood (in his own words) as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds?  In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds. 

1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.  The ruling triggers three noteworthy dissents:  Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.”  Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled.  And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”  (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

1986—In an opinion by Justice Rosemary Barkett, the Florida Supreme Court rules (in State v. Saiez) that a state law prohibiting the possession of embossing machines capable of counterfeiting credit cards “violates substantive due process” under the U.S. Constitution because embossing machines have legitimate uses.  That proposition, if taken seriously, would have dramatic consequences, as a broad range of criminally proscribed items also have legitimate uses.  Switchblades, for example, can be used to slice apples.  More damaging to the rule of law is the prospect that the proposition would be applied selectively in an unprincipled manner.

1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted).  (For more, see This Week entry for March 13, 1963.) 

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

For an explanation of this recurring feature, see here.