Constitutional Deja Vu in Winn and Berghuis

Reading over today’s decision in Arizona Christian School Tuition v. Winn, I feel like I’ve been here before: The decision reminds me of last year’s decision in Berghuis v. Thompkins. The two cases raise different issues, to be sure: Winn is about standing to bring Establishment Clause challenges, while Berghuis is about the standard for waiving Miranda rights. Still, I think there are some interesting similarities.

In both cases, Justice Kennedy writes a 5-4 decision chipping away at a significant Warren Court precedent (Miranda v. Arizona in Berghuis, Flast v. Cohen in Winn). In both cases, Justice Kennedy’s decision adopts a new principle that substantially narrows the old precedent (in Berghuis, the new principle is that silence should be treated as a Miranda waiver; in Winn, it is that tax credits should be treated differently than expenditures). And in both cases, the junior Justice writes a long and stirring dissent on behalf of the four liberal Justices pointing out how the majority’s decision is not consistent with past precedent (Justice Sotomayor wrote the dissent in Berghuis, and Justice Kagan wrote today’s dissent in Winn). I suppose one difference is that in Winn, Justice Scalia bothered to add a short concurring opinion, joined by Justice Thomas, repeating his view that the relevant Warren Court precedent should be overturned outright. In Berghuis, Justice Scalia didn’t bother to do that — although he had done so elsewhere, so his position (and Thomas’s) is no mystery.

Of course, the two cases are different in many ways. But I think there are some interesting similarities.