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A switch in time

In State v. Aalim, the Ohio Supreme Court held that the statute requiring mandatory bindover of juveniles for certain crimes was unconstitutional.  Last week, they decided it wasn't.

In State v. Gonzales, the Ohio Supreme Court decided that to prove the amount of cocaine for conviction of a possession or trafficking offense, only the amount of cocaine could be considered; any filler had to be discounted.  Earlier this year, they decided that the amount of filler could be included.

It took the United States Supreme Court 46 years to overrule Plessy v. Ferguson's "separate but equal" doctrine.  It took them 27 years to overrule Belton v. New York, which created a "bright-line" rule allowing the police to automatically search a car if the defendant was arrested, even if the defendant was safely, if unwillingly, ensconced in the back of a police cruiser.

The Ohio Supreme Court works more swiftly.  Gonzalez took just under three months to overrule, Aalim about six.

Except they weren't really overruled.  They were "reconsidered."

Kennedy's opinion in Aalim II begins with a statement about how reconsideration works; O'Connor's opinion in Gonzalez II doesn't even mention the subject.  Kennedy's take on it is broad:  "This court has the authority to grant motions for reconsideration filed under S.Ct.Prac.R. 18.02 in order to 'correct decisions which, upon reflection, are deemed to have been made in error.'"  It's followed by a cite to a single decision, and in fact, that decision is about all there is on the subject.

Of a motion for reconsideration in the Supreme Court.  The law on when a court of appeals should reconsider a decision is much more extensive.  The general test is

whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for the court's consideration that was either not considered at all or was not fully considered by the court when it should have been.

There's another case which says that the motion there was "nothing more than an expression of the appellant's disagreement with the court's opinion, and the court could not grant reconsideration on that basis."

And that's pretty much what the State's motions for reconsideration were.  Sure, there was some window dressing about issues the court didn't consider, but the opinions don't even pretend that that's the case.  It's a simple rehashing of the arguments.  The one thing the court apparently didn't consider when it made the decision was that they were getting two new justices in a month.

That's what really happened.  Lanzinger and Pfeifer voted with the majority in the original decisions.  They were aged out, and replaced by Fischer and DeWine.  Fischer, to his credit, voted against reconsideration, noting that he was being asked to reconsider something he hadn't considered in the first place.  But when that hurdle was cleared, both voted to overturn the original decisions.  What had been 4-3 majorities for became 5-2 majorities against.

That's not necessarily disturbing from a results perspective.  Gonzales I was based on legislative interpretation, and would have been shortly overruled by a change in the law; an amendment to the statute was in the works when Gonzales II came down.  And Aalim would have been overruled within a year, when the full implications of the decision became obvious.  

But what's troubling about this is the process, not the substance.  We all know that justices bring their own views onto the bench with them.  Balancing the rights of the individual versus society's need for order, for example, is not a binary question:  the answer exists along a spectrum, depending upon the circumstances, and each justice comes onto the bench comes with his or her own view of where the appropriate point on that spectrum is. 

The problem is that the more vigorously justices pursue their predilections, the more the perception grows that any particular court decision results from those predilections, rather than something like, oh... The Law.  That's where stare decisis comes in.  It ensures continuity and stability, two highly-prized virtues for the law.  It's not only a matter of respect for prior decisions; it's a way of reassuring the public that The Law doesn't change just because the composition of the court has. 

Gonzales and Aalim threw a gut punch into that one.

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