Justice Jackson had a nice way of putting it when he made mistake:
Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court * * *.' United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.
I got that Jackson quote from a Twitter comment in response to a tweet I had posted earlier about the decision. I've been thinking for a long time about switching form the blog to Twitter full time. Thoughts? Isn't Twitter easier to follow than a blog?
Anyway, the actual en banc decision is summarized in the first paragraph by Judge Newsom:
Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks, we held that a suspect who “abandons” his privacy or possessory interest in the object of a search or seizure suffers no “injury”—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect’s abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect’s alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue
8 comments:
Were you to switch from the blog to Twitter (exclusively), you may find yourself in the position of having to fashion an artful mea culpa. Don’t make Twits of us all.
All she did was follow binding Eleventh Circuit precedent. I suspect she was poking at one of her colleagues.
Judge Newsom has now written two opinions on standing, one in criminal, the other in civil within a week on areas where writing is necessary. For too long, people have been treating case and controversy, standing, justiciability, and political question as if they are all part of subject matter jurisdiction potpourri, and they are not. This most recent decision is signifiacnt because Judge Newsom makes it clear that Fourth Amendment "standing" is not standing at all, that standing is an Article III precondition to the filing of a suit. These two opinions were a long time in coming and should be welcomed by Fed Jurisdiction profs. Joe Klock
Some of us don't follow Twitter. Plus it imposes an artificial brevity. If it ain't broke, don't fix it!
Churchill famously said "Those who never change their minds never change anything."
And my professor in law school once said in response to my wrong answer to a question "sometimes wrong, never in doubt."
Near daily reader of your blog since it started. I don't have a twitter account. I don't want a twitter account. I won't get a twitter account.
If you switch to twitter, how will the Fed Soc guys from the U.S. Attorney's office anonymously troll the rest of us?
Nice gesture by Rosenbaum I guess but not really necessary. She wasn't following precedent, though. The original panel in the en banc appeal had to follow Rosenbaum's holding in Sparks, believing it to be incorrect is why they took it en banc to overrule.
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