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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-172
- --------
- JOHN BRUCE HUBBARD, PETITIONER v.
- UNITED STATES
- on writ of certiorari to the united states court
- of appeals for the sixth circuit
- [May 15, 1995]
-
- Justice Scalia, with whom Justice Kennedy joins,
- concurring in part and concurring in the judgment.
- I concur in the judgment of the Court, and join Parts
- I-III and VI of Justice Stevens' opinion. United States
- v. Bramblett, 348 U. S. 503 (1955), should be overruled.
- The doctrine of stare decisis protects the legitimate
- expectations of those who live under the law, and, as
- Alexander Hamilton observed, is one of the means by
- which exercise of -an arbitrary discretion in the courts-
- is restrained, The Federalist No. 78, p. 471 (C. Rossiter
- ed. 1961). Who ignores it must give reasons, and
- reasons that go beyond mere demonstration that the
- overruled opinion was wrong (otherwise the doctrine
- would be no doctrine at all).
- The reason here, as far as I am concerned, is the
- demonstration, over time, that Bramblett has unaccept-
- able consequences, which can be judicially avoided
- (absent overruling) only by limiting Bramblett in a
- manner that is irrational or by importing exceptions
- with no basis in law. Unlike Justice Stevens, I do not
- regard the courts of appeals' attempts to limit Bramblett
- as an -`intervening development of the law,'- ante, at 18
- (quoting Patterson v. McLean Credit Union, 491 U. S.
- 164, 173 (1989)) that puts us to a choice between two
- conflicting lines of authority. Such -intervening develop-
- ments- by lower courts that we do not agree with are
- ordinarily disposed of by reversal. See, e.g., McNally v.
- United States, 483 U. S. 350 (1987). Instead, the
- significance I find in the fact that so many Courts of
- Appeals have strained so mightily to discern an excep-
- tion that the statute does not contain, see ante, at 3, n.
- 2 (collecting cases), is that it demonstrates how great a
- potential for mischief federal judges have discovered in
- the mistaken reading of 18 U. S. C. 1001, a potential
- we did not fully appreciate when Bramblett was decided.
- To be sure, since 1001's prohibition of concealment is
- violated only when there exists a duty to disclose, see,
- e.g., United States v. Kingston, 971 F. 2d 481, 489 (CA10
- 1992); United States v. Richeson, 825 F. 2d 17, 20 (CA4
- 1987); United States v. Irwin, 654 F. 2d 671, 678-679
- (CA10 1981), cert. denied, 455 U. S. 1016 (1982), it does
- not actually prohibit any legitimate trial tactic. There
- remains, however, a serious concern that the threat of
- criminal prosecution under the capacious provisions of
- 1001 will deter vigorous representation of opposing
- interests in adversarial litigation, particularly represen-
- tation of criminal defendants, whose adversaries control
- the machinery of 1001 prosecution.
- One could avoid the problem by accepting the Courts
- of Appeals' invention of a -judicial function- exception,
- but there is simply no basis in the text of the statute
- for that. Similarly unprincipled would be rejecting
- Bramblett's dictum that 1001 applies to the courts,
- while adhering to Bramblett's holding that 1001 applies
- to Congress. This would construct a bizarre regime in
- which -department- means the Executive and Legislative
- Branches, but not the Judicial, thereby contradicting not
- only the statute's intent (as Bramblett does), but, in
- addition, all conceivable interpretations of the English
- language. Neither of these solutions furthers the goal
- of avoiding -an arbitrary discretion in the courts-; they
- seem to me much more arbitrary than simply overruling
- a wrongly decided case.
- The other goal of stare decisis, preserving justifiable
- expectations, is not much at risk here. Those whose
- reliance on Bramblett induced them to tell the truth to
- Congress or the courts, instead of lying, have no claim
- on our solicitude. Some convictions obtained under
- Bramblett may have to be overturned, and in a few
- instances wrongdoers may go free who could have been
- prosecuted and convicted under a different statute if
- Bramblett had not been assumed to be the law. I count
- that a small price to pay for the uprooting of this weed.
-