I’ll have more substantive comments on the post (and the Greenhouse article, and the WaPo‘s ridiculous “we’re strongly opposed to the rulings that were made utterly inevitable by the justices we endorsed” editorial stance) later. But I wanted to have some fun this comment from Lederman first:
even when it means a very heatedly divided Court, and when (as in Leegin, WRtL and elsewhere), it requires de jure or de facro overruling of past cases.
I wonder if that’s a typo? Either way I think that it could come in handy in describing a depressing amount of future Roberts Court jurisprudence. A case, such as Carhart II, in which the Court makes a farcically trivial or specious distinction in order to avoid formally overruling a precedent is a “de farco overruling.” I like it!