260
Scalia, J., dissenting
same precedential effect as does a case decided upon full briefing and argument." Id., at 651, n. 1. But the sole authority cited for that dictum was Edelman v. Jordan, 415 U. S. 651 (1974), which declined to give stare decisis effect, not to opinions that had been issued without briefing and argument, but to judgments that had been issued without opinion—"summary affirmances" that did not "contain any substantive discussion" of the point at issue or any other point, id., at 670-671. Such judgments, affirming without comment the disposition appealed from, were common in the days when this Court had an extensive mandatory jurisdiction; they carried little more weight than denials of certiorari. House, by contrast, was a six-page opinion with substantive discussion on the point at issue here. It reasoned: (1) "Our authority . . . extends only to cases 'in a circuit court of appeals . . . .' " (2) "Here the case was never 'in' the court of appeals," because of (3) "want of a certificate of probable cause." 324 U. S., at 44.2 And it cited as authority Ferguson v. District of Columbia, 270 U. S. 633 (1926). The new rule that the Court today announces—that our opinions rendered without full briefing and argument (hitherto thought to be the strongest indication of certainty in the outcome) have a diminished stare decisis effect—may well turn out to be the principal point for which the present opinion will be remembered. It can be expected to affect the treatment of many significant per curiam opinions by the lower courts, and the willingness of Justices to undertake summary disposition in the future.
2 The concurrence asserts that this analysis was "virtually unreasoned." Ante, at 253 (opinion of Souter, J.). It seems to me, to the contrary, that there was virtually nothing more to be said. Not until today has anyone thought that a "case" could consist of a disembodied request to appeal. The concurrence joins the Court in relying upon a truly eccentric argument, and then blames the House Court for not discussing this eccentricity at length.
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