One of the ridiculous little rituals that has come to surround every Supreme Court nomination these days is the stare decisis dance. Everyone knows what it's really about; it's about abortion and Roe v Wade. No nominee is going to come right out and say that they think Roe should be overturned. Roe has become a sacred cow in American politics, despite the fact that legal scholars pretty much agree that it's a very badly written and badly reasoned decision. I'm pro-choice but I can certainly recognize how weak this decision was.
Still, no nominee can afford to say that without cranking up the opposition even more. And legislators don't want to appear to be too eager on that front, so they speak in code language about "respect for precedent" and stare decisis. And you even get the spectacle of Arlen Specter (how's that for alliteration?) talking about "super precedents" - whatever the hell that is. But I'm going to let you in on the dirty little secret here - no one believes in stare decisis. That's right, no one, on either side of the aisle, really believes that just because a ruling has not been overturned for some unspecified period of time, it should never be overturned.
They may believe that in some cases, of course. They certainly believe that if they support what that precedent says. But if they are strongly opposed to that precedent, they'd want it overturned in a heartbeat. The Democrats make that argument about Roe because they want it to remain in place. But if Roe had gone the other way, the sides would be opposite now and the Republicans would be arguing for the primacy of precedent and the Democrats would be arguing the opposite.
Does anyone seriously think that the Supreme Court should have left Plessy in place as binding precedent merely because it had been there for 60 years? Of course not. Hell, I'll go back farther than that - if I was on the court and had the opportunity to overturn the Slaughterhouse cases, I wouldn't hesitate for a moment. I don't care how long that idiotic ruling has laid there unchallenged, it has thoroughly distorted the meaning of the 14th amendment privileges and immunities clause and caused no end of dishonest and convenient misinterpretations of the due process clause to reach the same result. I'd much rather just overturn those cases and start from scratch with a coherent 14th amendment jurisprudence.
The Supreme Court has often gotten it wrong the first time around and had to reverse themselves to get it right. The flag salute cases are a good example, and so are the sodomy case rulings of the last couple decades. The court got it wrong in Bowers and right in Lawrence (and coincidentally, this is where the privileges and immunities clause and a coherent jurisprudence based upon it would have done a lot of good in avoiding the first bad result). And sometimes they've gotten it right the first time and wrong the second time. But no one, despite their claims to the contrary, really believes that precedent should rule in all cases regardless of whether the ruling was right. Find a precedent they are sufficently opposed to and that pretense quickly goes away.
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With all due respect, you are presenting a grotesque caricature of the issue. Stare decisis does not mean that a precedent is binding on the SCOTUS; rather, it means that a precedent is due some deference. How much deference - that is a matter of degree and, therefore, a belief in SD is a matter of degree and not a yes/no question. Justices clearly differ in how they view precedent. Thomas basically thinks SD is quaint, while Kennedy is extremely inclined to defer to precedent (which made his position in Lawrence that much more valuable).
Just look at the example of the Korematsu case. John Roberts will forever be known as stare decisis boy, but then he said that the Korematsu case is a case that would likely be overturned, or at least not upheld today. He said it was generally regarded as bad law. I also think that Roe is bad law, like you said. (Yes, we have a right to privacy, but what the hell does abortion have to do with that? Anything that could be said for that would be weak logic.)
enfant terrible wrote:
With all due respect, you are presenting a grotesque caricature of the issue. Stare decisis does not mean that a precedent is binding on the SCOTUS; rather, it means that a precedent is due some deference.
I think you're misunderstanding that I'm making exactly that point. The grotesque caricature is what is taking place in these hearings, where the subject of stare decisis is discussed entirely apart from any specific precedent. It is meaningless for a nominee to say that they give due deference to precedent. Who on earth would say otherwise? Clarence Thomas, in fact, said the very same thing in his nomination hearing and that obviously didn't mean much. Everyone on either side is going to say that they believe precedent is due some deference, but everyone on either side is still going to throw a precedent out the window if they strongly disagree with it.
SCOTUS discussed extensively what deference was due stare decisis in Casey v. Planned Parenthood. In Casey, the Court was asked to overturn Roe v. Wade and they declined to do so (but they modified the trimester requirements to viability).
Justice O'Conner articulated that one reason to not overturn precedent was that people had come to rely on a decision of the Court and consequently they structured their lives and social relationships based on it. Justices Scalia and Thomas thought that was a terrible way to view stare decisis and instead they argued that the decisions of the Court should be based on the original intent of the Framers. Consequently, regardless of how much turmoil might be caused, if the case was 'wrongly decided' in the first instance, these two would overturn precedent. (I know I'm over simplifying their nuanced opinions.)
In my opinion, this is probably the biggest issue that a Supreme Court justice needs to wrestle with. If I could hear just one response from a nominee, it would be a ten page brief explaining their view of precdent and stare decisis.
A judge's opinion on stare decisis will likely be a balance between three things: the judge's personal belief of what is right, the judge's belief on what the Constitution permits or requires, and the practicality of the their decision. I know if I were on the Court, I tend toward O'Conner's position. Blindly implementing the 'intent' of a bunch of white guys that for the most part, owned slaves and thought that women should not be allowed to vote, doesn't leave me with a warm feeling (even if I could somehow divine the 'intent' of this group 240 years after the fact.
But judges certainly give weight to stare decisis. Our legal system would simply grind to a halt if appellate judges were re-evaluating cases that were decided thirty forty or one hundred years ago. Politicians however, have no regard for stare decisis. I agree with Ed--they simply use the words in order to cloak their positions. Most people (and politicians) that have taken a fervent stand on abortion (and consequently think it should be overturned/upheld) haven't even read Roe- Casey or even read the Westlaw summary of the case.
Another Brayton?
An even more egregious case of getting it wrong than Bowers was Plessy, of course, righted by Brown.
I think, re SCOTUS, that we need to abolish not only life tenure, but the president appointing all justices. In many European countries, it's split; for example, the president in a parliamentary democracy may appoint part; the prime minister on his/her own initiative part; and the parliament part.
THAT's how you get checks and balances. And, with no life terms, the court has a chance to be a living, breathing institution to interpret a living, breathing constitution.
Nah, I'm not looking forward to turning judges into politicians. Judges are, on the large, intellectually honest. I'd hate to see them turn into just another politician who willingly lie and trade favors to keep their position.
I know nothing about the legalities of these things. But I am curious.
When a lower court makes a decision, it is always understood that hypothetically the ruling could always be overruled by the Supreme Court, making that court out to be, in a sense, the "exemplars" of legal thinking. As such, the SCOTUS doesn't have to see lower court precedent as anything special, since they are really the determiners of whether something is constitutional or not.
Is it the same relationship between a past SCOTUS and a future SCOTUS, such that the past SCOTUS is seen as a lower court? It seems as if the analogy is faulty in some way, that although the past SCOTUS can, of course, be overturned it is not as if the future SCOTUS is set up as the exemplars of legal thinking over the past SCOTUS as it seems to be with respect to lower courts and the SCOTUS.
This difference seems to imply some grounding for stare decisis. I have no idea about whether this is in the constitution (I'm sure it is not), but it was just something that had been bugging me about the whole thing.
Ed: Glad to see that I misread you. I found your blog just a few days ago and am still discovering the depths of your irony (it's quite an enjoyable reading). Still, it is important to keep in mind that some Justices will make their disagreement with a past decision count a lot more than other. I bet Kennedy totally disagrees with Roe, or at least did when he joined the "middle block" in Casey, and I don't know of a way to measure disagreement, so how can we tell if he disagrees with Roe any less than Scalia or Thomas. The difference is that he has more respect for the Court as a continuing institution, and less messianic drive to make his view of the law triumph over the opponents.
Oolong: Lower courts are bound by SCOTUS precedents, but SCOTUS is not. And it does not come from the Constitution, but from common law principles, which are much older. Those same principles, however, strongly advise against the SCOTUS changing its precedents back and forth as political winds change. Court-made law is expected to be lasting and slowly built up.
...Which brings us to the most irritating fallacy perpetuated by Republicans: that judges should not make law. That is complete nonsense - the whole Anglo-Saxon legal system is based on the authority (and duty) of judges to make law. My dear Republicans, if you don't like it, go to France! In the civil law system, judges have a far more limited, if any, lawmaking role.
Matthew-
Yes, another Brayton. David is my cousin, named after my father. There is actually another Brayton who comments here as well. Treban is my younger brother.
SocraticGadfly wrote:
I think, re SCOTUS, that we need to abolish not only life tenure, but the president appointing all justices. In many European countries, it's split; for example, the president in a parliamentary democracy may appoint part; the prime minister on his/her own initiative part; and the parliament part.
THAT's how you get checks and balances. And, with no life terms, the court has a chance to be a living, breathing institution to interpret a living, breathing constitution.
Honestly, I could not disagree with you more. Giving judges life tenure was one of the best things the founders did to insure the independence of the judiciary. Hamilton was right; without an independent judiciary, all of the rights that the Constitution was meant to secure would become void. As for the notion of a "living, breathing constitution", I think this is a bad idea. I am an advocate for "liberal originalism", as advanced by scholars like Randy Barnett and Scott Gerber.