July 18, 2005

How concerned should we be about about the new justice's obedience to precedent?

Replacing Justice O'Connor, the Court's key swing voter, is making people fret that we are headed into a period of drastic, unsettling overruling of cases. Are there not four votes already on the Court just waiting for that fifth vote, with which they can flip numerous precedents to the other side? So attitudes about overruling cases are going to be extremely important, aren't they? The Christian Science Monitor has this:
As Justice Potter Stewart wrote in a 1974 dissent: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government."

He added, "No misconception could do more lasting injury to this court."...

Suzanna Sherry, a constitutional law professor at Vanderbilt University Law School in Nashville, Tenn., says it can be difficult to predict how a new justice may vote when legal precedents are on the line. The justice's personal views regarding a case may not control the final outcome, she says.

"A judge who thinks affirmative action is unconstitutional but who is also strongly influenced by principles of stare decisis might decide not to overrule the earlier case, but to limit it, and not extend it in the next case," Professor Sherry says.
In the affirmative action cases, as in many, many cases, O'Connor took positions based on her idiosyncratic balancing of multiple factors. That makes it easy, in the next case, to reach a different result without needing to overrule anything. If in the process of deciding the new case the Court crispens and clarifies the doctrine, it won't need to portray what it's doing as overruling.

Though we will always remember Justice O'Connor as the first woman on the Court and the person who defined the Court's balance point for a quarter century, the impression she made on constitutional law doctrine is likely to dissipate quickly -- and without the sort of dramatic overrulings that ordinary people notice.

Nonetheless, there will be lots of jabber about posturing about the value of precedent at the Senate hearings.


ziemer said...

the concern seems rather overblown. in kelo, for example, only one justice -- thomas -- suggested overturning berman.

in lopez, also, only thomas suggested that the interstate commerce clause means that congress may only regulate interstate commerce.

it would require enormous change on the court for any significant repeal of precedent.

Bruce Hayden said...

Let's cut to the chase. This is about abortion. Pure and simple.

Forty years ago, Justice Douglas found argued that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Penumbras formed by emanations? Is this legal reasoning or astronomy?

But thanks to Grisold, and later Roe, abortion is now Constitutionally mandated. It is now binding precedent.

So, the worry about precedent is almost exclusively a worry that this string of cases, itself not built on precedent, might be overturned by a couple more "conservative" justices.

Bruce Hayden said...

Sorry about grammer in the previous post.

But I am not sure, after Kelo, if Scalia has it in himself to override precedent in, for example, the area of abortion.

Bruce Hayden said...

Lest you think that I am a rabid pro-lifer, I am not. As a guy, I am somewhat ambivalent on the subject. I may get "religion" if my daughter is faced with it - but do have a 12 guage available JIC instead.

And I can't complain about the social side of Griswold. BUT I still consider this string of cases one of the worst things that the Supreme Court has ever done, almost as bad as Dred Scott.

It, in a couple of key decisions, moved a dispute that should have been, and was being, decided in the political realm, out of there and out of reach of the tens of millions on the other side.

leeontheroad said...

Concern from what point of view? From the standpoint of national politics, I would argue that stare decisis would be important. That's precisely so that a) the other branches are forced to do their jobs-- leading consensus and legislatng in the nation's interest; and b) the Court does not lead, legislate or otherwise set national policy.

The latter has been the charge of conservatives against the Warren and Burger courts. The charge has merit (even where I like case outcomes). More recently, it's been the charge against any judges whose decisions folks don't like. To me, such knee jerk rhetoric is court bashing.

So, to me, it would be very bad for the Court to become/continue to be an actor on the political stage, only now for conservative interests.

And it will be very difficult in a nasty political environment to convince many (maybe even me) the Court is not a political arm of conservatives if the Court overturns Roe and Grutter v. Bollinger.

downtownlad said...

Bruce - Do we have a right to travel? I'm talking about within the United States. I don't see that right in the Constitution, but it's something that the Supreme Court has declared to be one of the undefined "rights" in the 9th amendment.

You do know about the 9th amendment, don't you? Or do you think it's just an "inkblot" as Bork would have us believe?

Steven said...

Yes, there is a Ninth Ammendment. And if you can show a precedents in the common law where a right was recognized (even implicitly) prior to the adoption of the amendment, you have a case that such an unenumerated right is guaranteed by the Ninth Amendment. Marriage and travel are such rights.

The penumbra-and-emanation theory, however, makes no attempt to defend a right as an already-existing one defended despite its non-enumeration by the Ninth Amendment. Instead, it claims there are new unenumerated rights derived from the enumerated ones.

That's a huge difference. Under the former, one must look to the case history of the common law to find precedent to support a theory of a right. Under the latter, one can simply declare that since something should be protected, in nothing more than the personal opinion of the Justice, then it is protected.

TopCat said...

I've never understood why the left feels that stare decisis should act as some kind of a Breznev Doctrine whenever they stretch the Constitution to include their pet progects.

Bruce Hayden said...

Top Cat

I think I answered it in my first post. The left was able to get the courts to enshrine a bunch of new rights in the Constitution, without really any real precedent to support them, when they had control of the courts. But the long run of Republican presidents has moved the judicary slowly to the right.

The worry then is that if these rights can be invented without any real reference to stare decisis, then they can be abolished just the same way. But if the new justices feel bound by such, then these rights are safe.