The Lincoln Plawg - the blog with footnotes
Wednesday, March 24, 2004
The perils of Pacifica: a suitable case for (Marks-ist) treatment?
[I turn to refresh my memory of the fundamental US Supreme Court decision underlying FCC practice on indecency censorship, and...]
Back in the days of hope, when the Mordor-like pall cast by Injustice O'Connor was not yet patent to the mob yearning to be free of affirmative action, it was necessary to consider the case of Bakke and its ratio decidendi - at best tortured, mostly likely illusory - vivisected and Frankensteined by the perverse mechanism known as 'Marks analysis' .
The cleanest rule would be that no proposition would have precedential value except one clearly and explicitly agreed in terms by at least five of the panel of nine. The upshot of Marks is that the ratio of a decision may be one supported by no justice whatsoever.
But the vanity of Their Corvinenesses would not brook the notion that anything that fell from their beaks could be of no lasting value. Thus stare decisis becomes unstable and indecisive!
In Bakke , the box score was as follows:
POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 324. WHITE, J., post, p. 379, MARSHALL, J., post, p. 387, and BLACKMUN, J., post, p. 402, filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C. J., and STEWART and REHNQUIST, JJ., joined, post, p. 408.
In Pacifica, things are only a little simpler:
STEVENS, J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I-III and IV-C, in which BURGER, C. J., and REHNQUIST, J., joined, and in all but Parts IV-A and IV-B of which BLACKMUN and POWELL, JJ., joined, and an opinion as to Parts IV-A and IV-B, in which BURGER, C. J., and REHNQUIST, J., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, J., joined, post, p. 755. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 762. STEWART, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 777.
Does Pacifica require Marks analysis, I wonder? (Still at the back of the grid...)
free website counter