Amanda Frost has this post on SCOTUSBlog discussing Barry Friedman’s excellent piece on stealth overruling, and my draft in progress on other ways that Supreme Court Justices can move the law. One of the ways I discuss in the paper is through “inadvertence,” and Amanda adds some astute observations of her own on inadvertence.
Josh Blackman also asks whether these are new phenomena or tools of common law judges from time immemorial. In fact, in the paper I make it clear that these are not new phenomena, and I give examples of pre-Roberts Court uses of the same tools. Indeed, the term “time bombs” comes from the recent Brennan biography, and comes from a complaint that Justices Powell and O’Connor shared about how Justice Brennan wrote some of his opinions.