Mandel v. Bradley

Mr. Justice Brennan,

concurring.

I join the opinion of the Court but write to emphasize the Court’s treatment of the rule announced in Hicks v. Miranda, 422 U. S. 332 (1975).

In a dissent from the denial of certiorari in Colorado Springs Amusements, Ltd. v. Rizzo, 428 U. S. 913 (1976), I stated why, in my view, the federal and state courts should give “appropriate, but not necessarily conclusive, weight to our summary dispositions,” id., at 923, rather than be required, as the Court held in Hicks, “to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances.” 428 U. S., at 913.

The Court by not relying on our summary affirmance in Tucker v. Salera, 424 U. S. 959 (1976), and Auerbach v. Mandel, 409 U. S. 808 (1972), effectively embraces that view, and vividly exposes the ambiguity inherent in summary dispositions and the nature of the detailed analysis that is *180essential before a decision can be made whether it is appropriate to accord a particular summary disposition precedential effect. After today, judges of the state and federal systems are on notice that, before deciding a case on the authority of a summary disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconstitutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible. In other words, after today, “appropriate, but not necessarily conclusive, weight” is to be given this Court’s summary dispositions.