The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_172/94_172.zc

Text File | 1995-05-15 | 4KB | 84 lines

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.