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Bar News - August 19, 2015


Opinion: Batman, Scalia, and the Business of Retconning

By:

A few summers ago you might have settled into a cushy movie theater seat and sat back as Christopher Nolan’s Batman movie, Batman Begins, exploded across the screen. Everything went as you expected, big explosions, all of the normal Batman characters, until you saw Liam Neeson. His character turned out to be a pivotal person in Batman’s creation, something you might have missed from the original TV show or comics.

The character and the related origins story were relatively recent additions to the Batman lore. They were brought in to the story as part of what comic book fans and writers call retroactive continuity, or retconning for short. The idea is that when a character needs to be freshened up or made more interesting, writers go back in and tinker with how that character came to exist. Retconning has become popular in all sorts of pop culture fiction – from comics to movies.

But it happens in nonfiction as well. Here are a few select US Supreme Court opinions over the last decade or so that all retconned the law.

US v. Jones. Confronted with a GPS tracking search, the justices were stymied, it seemed, if they resorted to the original intent of the Constitution because, well, there were no GPS devices in the 18th century. But these are the nine smartest lawyers on the planet and mere historical anachronisms weren’t going to stop their original-intent-loving impulses.

Part of the court invalidated the search on traditional grounds, relying on the standard expectation of privacy. Traditionally, the police had to have a warrant or some special circumstance to invade privacy, but the controlling opinion retconned the law, telling us that we had forgotten another basis to invalidate a police search – trespasses to property. That basis had been there the whole time, but no one had remembered it was there.

Arizona v. Gant. Search incident to arrest is (was) a powerful exception to the warrant requirement. It allowed police to search folks if they were arrested. Belton v. New York and the cases that followed provided for a few limitations on this exception, but it was, in many cases, a blank check handed to the police. Then in Gant the US Supreme retconned the law. In one swift stroke, it all but gutted Belton. The Court did so by reminding us that history means for exceptions to be narrow and, for some reason, every court from Belton on had forgotten that.

Crawford v. Washington. The court upended years of evidence jurisprudence and rewrote the hearsay rules by introducing a few new legal tests that are connected to the Constitution by the thinnest of intellectually tortured threads. The most common example in criminal law is that drug test results now require an analyst to be present, absent a statutory exception or waiver, for results to be admitted (this is from Commonwealth v. Melendez Diaz, a follow up to Crawford). In Crawford, the court went back to things like the Spanish Inquisition and English common law, to find the truth that hundreds of years of legal analysis had somehow missed.

What’s the common thread here besides retconning? Antonin Scalia, the Supreme Court’s Master of Zingers, wrote majority or controlling opinions in three cases and was in the majority in Gant.

Retconning the law is an elegant solution to the problem of stare decisis. When the foundational concepts of legal analysis bar a conclusion compatible with your personal, political, or legal beliefs, just retcon the law. The obvious irony here is that Scalia does all of this groundbreaking under the guise of “original intent” interpretation.

Scalia may have reached the correct result each time, but the method, this brand of historical interpretation that borders on reenactment, is vastly more radical than the slow, incremental change that stare decisis represents.


Tony Sculimbrene

Tony Sculimbrene is a public defender at the NH Public Defender office in Nashua. His views do not represent those of his employer.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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