Cite as: 521 U. S. 203 (1997)
Ginsburg, J., dissenting
leaving to this Court the option of overruling our previously binding decision. See ante, at 238. The Court thus acknowledges that Rule 60(b)(5) had no office to perform in the District Court, given the no-competence instruction of Shearson/American Express. All the lower courts could do was pass the case up to us. The Court thus bends Rule 60(b) to a purpose—allowing an "anytime" rehearing in this case—unrelated to the governance of district court proceedings to which the Rule, as part of the Federal Rules of Civil Procedure, is directed. See Fed. Rule Civ. Proc. 1.
In an effort to make today's use of Rule 60(b) appear palatable, the Court describes its decision not as a determination of whether Aguilar should be overruled, but as an exploration whether Aguilar already has been "so undermined . . . that it is no longer good law." Ante, at 217-218; see also ante, at 222-235. But nothing can disguise the reality that, until today, Aguilar had not been overruled. Good or bad, it was in fact the law.
Despite the problematic use of Rule 60(b), the Court "see[s] no reason to wait for a 'better vehicle.' " Ante, at 239. There are such vehicles in motion, and the Court does not say otherwise. See, e. g., Committee for Public Ed. and Religious Liberty v. Secretary, U. S. Dept. of Ed., 942 F. Supp. 842 (EDNY 1996) (PEARL II); Helms v. Cody, 856 F. Supp. 1102 (ED La. 1994); cf. Brief for U. S. Secretary of Education 45 (noting that a school district other than New York City could bring an action against the Secretary to challenge an Aguilar-based Title I funding decision). The Helms case, which has been appealed to the Fifth Circuit, involves an Establishment Clause challenge to Louisiana's special education program. In PEARL II, the District Court upheld aspects of New York City's current Title I program that were challenged under the Establishment Clause. The plaintiffs filed a notice of appeal in that case, but the parties later stipulated to withdraw the appeal, without prejudice to reinstatement, pending our decision in this case.
259
Page: Index Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 NextLast modified: October 4, 2007