Sometimes we go on a little too much, and it obscures a simple truth that could be, and should be, succinctly stated.
The problem with Judge Gary Feinerman’s opinion in Starks v. City of Waukegan is that it writes Mooney v. Holohan and all of its SCOTUS progeny out of the law, when they have never been overruled or even limited or qualified. Ever. They are now and have been since 1935 the law, which every court in this country is solemnly bound to follow. And they were unquestionably correct in their holdings, from any rational or sane or rudimentary moral perspective.
And if any court, anywhere in this country ever explicitly disregarded them there would be hell to pay, as well there should be. But what has happened, and what the Starks opinion embodies, is the overruling of the Mooney line of cases through a transparent sophistry that properly has no place in the legal profession or the judiciary at all.
Now, there’s more to be said about that last point, having to do with the separation of powers. But we said we were going to be succinct, so that awaits another turn at bat.