October 30, 2005

Luttig and "super-stare decisis."

Jeffrey Rosen re-airs the topic of "super-stare decisis" -- the notion that the precedential value of some cases is especially strong, perhaps so strong that you ought to have to agree in advance not to overrule them to win confirmation to the Supreme Court. In this connection, it's notable that Michael Luttig -- who seems to be on a very short list -- actually used the term in the only federal court case where it appears. Rosen doesn't mention the super-unusualness of the term, by the way. I just did a LEXIS search to bring you that information. The alternate term "superprecedent," which Rosen uses, does not appear even once is the federal court cases.

Anyway, here's what Luttig wrote:
I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . . After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, ("This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.").
Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.

In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.

But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.

Proposed line of questioning for the Luttig confirmation hearing (if such a thing should come to pass):

You wrote that the Supreme Court "intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis," but I am interested to know if you think that a Court can declare special precedential value for one of its decisions. You don't think a later Court is bound by a declaration like that, do you? And if not, do you think there is something to this idea that once people are told they have rights, that those rights are impaired by leaving them in a state of doubt? If the Court says these are your rights, people ought to be able to believe that they really have those rights, that they will still be there in the future, shouldn't they? Isn't that part of what rights are?


twwren said...

If there is no such a thing as Super Stare Decisis, could Marbury v. Madison be overruled,theoretically?

chuck b. said...

Besides abortion, does Roe serve as precedent for other legal issues? When, besides abortion-related matters, do attorneys cite to Roe?

John Jenkins said...

Sure. Of course, in theory you'd then be overruling the rest of 200 years of Supreme Court jurisprudence by saying, "just kidding" to the idea of judicial review.

John Jenkins said...

Roe is cited for an exception to the mootness doctrine called "capable of repetition yet evading review." (Otherwise known as the, "we want to make abortion a fundamental right but it takes longer than 9 months for a case to get here so what the hell do we do about it" doctrine.) I don't really know how often it's actually invoked, however.

Ann Althouse said...

Chuck: Roe supports Lawrence v. Texas, which precluded the states from making sodomy a crime. So it is tied to gay rights.

John Jenkins said...

Prof. Althouse, Is Roe really necessary for Lawrence? Doesn't the holding of Griswold get you to Lawrence without going through Roe?

michael a litscher said...

Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Can anyone point out where "stare decisis" is granted the power of "supreme law of the land?" Me neither. Which is why bad decisions based on faulty reasoning should be ignored, not upheld, and certainly not enshrined as "super-stare decisis."

Ann Althouse said...

John: Yes. You could also have gone straight to Lawrence without ever having had Griswold, but Roe was certainly in the line of cases. I agree that if Roe were overruled, it wouldn't take down Lawrence. A side point: the Equal Protection approach to the Lawrence problem (in O'Connor's opinion) is more useful in the pursuit of gay rights anyway.

twwren said...

John, sure you would be overruling 200 years of jurisprudence by saying "just kidding". Isn't that the point? Where is the bright line? Everytime you ignore stare decisis, aren't you saying, "just kidding"?

John Jenkins said...

That's not my point at all. Judicial review is the fountainhead for each and every other decision. To overrule Marbury v. Madison is to overturn every subsequent case about anything. That said, there's nothing that says it can't be done. Judicial conservatism would counsel leaving it alone, but it's possible that a sufficient number of radical justices could, in fact, overrule Marbury v. Madison.

So doing would create a completely new Constitutional order, which some would see as a good thing. For me, the chaos alone is a good reason not to do it. Just because you *can* do something, doesn't mean you should do it. It would be imprudent at best, and I think most judges regard prudence as a fairly important virtue.

Your argument is subject, of course, to the identical attack: where to draw the line in the other direction. Should Plessy still be good law because it was decided? Who decides what precedents are super-precedents? There is no bright line. That's the first thing I learned in law school.

Anonymous said...

Well, we have seen at least one other instance of this same Court trying to change the precedential value of one of its decisions by an act of will: the "move along folks, no precedents to see here" of Bush v. Gore. Combined with the general arrogance of the Casey decision, that makes the view Ann imputes to Luttig pretty plausible.

I'm afraid her own attempt at an alternate explanation ends up begging the question. Why would the observation that Roe should be treated as a super-precedent because if it isn't the right to abortion isn't really a right, change the mind of anyone who believes the decision should be overturned because the right to abortion isn't really a right?

twwren said...


"Liberty finds no refuge in a jurispudence of doubt."

Plessy was law for 54 years. Why does this statement apply to Roe and not to Plessy.

And, I am NOT supporting Plessy.

Ann Althouse said...

Plessy was the denial of a right. The reasoned position for treating Roe as superprecedent is that it gave an important right that people have believed in for a long time. Cutting back rights is a different, drastic thing to do. It has been done, of course. Economic due process rights were scaled way back.

twwren said...


I am NOT arguing for or against Roe and I am not arguing for or against Plessy. I brought neither of these cases up. My example was Marbury.

I am asking how is the line is drawn between Stare Decisis and Super Stare Decisis.


John Jenkins said...

Twwren, I'm saying there is no bright line and prudence is the only guide. Believe me, I am one-hundred percent behind the idea that the presence of malleable rights means there are no rights all. I get it. I'm just saying there's no easy answer other than judicial conservatism.

I don't think that the granting a right versus denying a right distinction even helps. We can just move from Plessy to Lochner and have the same problem. That's just an argument for an inexorable expansion of rights to encompass every possible activity once some court at some point decides something is a "right." I'm not sure that's what's being argued for, but I think it's the result.

Ann Althouse said...

TWren: I'm explaining why the one precedent could be seen as stronger than the other: because it gives rights, rather than denying them. Not sure what I said to provoke the "jeez"!

Undecided said...

I'm not always in the mood to dish out compliments, but this was an awesome post and analysis on your part.

twwren said...



It just seemed that you were trying to turn my question; how to objectively identify a superperecedent, into a Roe Argument when you stated,"'the' (not 'a') reasoned position for treating Roe as a superprecedent is..." There is also a reasoned position; a thoughtful position, that Roe was bad law (and bad science) not deserving of Stare Decisis protection much less superprecedent status.

Everyone believes Plessy was wrongly decided and deserved to be overturned even though it was, arguably, a superprecedent at least if measured by time as those invoking the claim on behalf of Roe are wont to do. I do understand your point relating to the denial of a right versus the granting of a right but (i)it is open to question whether SCOTUS should be in the 'Right Granting' business and (ii) in respect of the superprecedent question, I'm still trying to figure out if it is a difference without a distinction.

What we are left with, as I see it is, the Potter Stuart test: I can't define a superprecedent but I know it when I see it.

I do very much enjoy your blog and appreciate being able to participate.

twwren said...


I think we are in violent agreement.

I know there is no bright line. "Super-stare decisis" is not even a legal precept; it is a political construct.


Dad29 said...


Reading Kennedy's fatuous and slightly bizarre assertions in Casey forces one to think that Luttig was engaging in mockery, if carefully guarded.

A SCOTUS justice who allows that (in effect) someone can make up their own world and live therein has imbibed far too deeply from a substance stronger than caffeine.

Perhaps Washington Air.

Dad29 said...

See this discussion in another context:


Fat Man said...

I don't know why Roe gets kid glove treatment. It has never been given a satisfactory rationale. I think even Ginsburg has admitted that.

In Lawrence it was regrounded as a substantive due process case, which was interesting, because the court had for years abjured substantive due process.

Super-stare decisis -- I think not. I assume that Judge Luttig was making a bitterly cynical wisecrack.

Logically, SCOTUS cannot bind itself, because if it did it would no longer be supreme.

Knemon said...

"Plessy was the denial of a right."

Well, pro-lifers see *Roe* as the denial of a right.

"The [fetus] has no rights that [its mother] is bound to respect." Sound about right?

The problem is that words like "right" are as useless, in modern legal/political discourse, as "fascism" in popular ideology. "Right" has been equated with "claim," rendering the word meaningless.

I'm sure those pleased by Plessy saw it as advancing the "right" of the community to keep itself racially pure, or whatever.

100 years ago, good-minded progressives believed some creepy things.

Plus c'est la meme chose.

Mark T said...

Griswold and Roe stands for a rather simple, libertarian proposition -- one that was enthusiastically embraced by the founding fathers in the adoption of a Bill of Rights to superimpose over other governmental action -- and one that you would think most conservatives (inlcuding so-called originalists) would embrace: That is, that there is a zone of personal decisionmaking -- per Roe and Griswold, that zone includes decisions concerning sexual reproduction, birth control, and so on - which involve moral issues as to which there are very compelling, but entirely divergent, views that cannot be reconciled. If "liberty" -- aright expressly guarantied in the Constitution -- is to have meaning in relation to this special area of personal decisionmaking, then the government (including elected legislative bodies) simply cannot impose one set of moral views (even that of a so-called "majority") on those who disagreee except under where there is a truly comelling state interest and that interest is advanced in the narrowest manner possible so as to not create an undue burden on the individual's liberty rights.

In the context of that broader libertarian principle, the specific standard setting of Roe -- the trimester distinctions, discussion of what types of burden might or might not be permissible, and so on -- that have troubled conservatives so much (that drag Roe into the realm of so-called judicial legislation) are no different than how state courts applying the common law have drawn lines and created standards that state legislatures do not draw in order to give content and coherence to the common law (or for that matter, how federal judges have tried to articulate what constitutes "interestate commerce" from both sides of the political or philosophical spectrum. In Roe, these standards were adopted in order to provide content to terms like "fundamental rights", "compelling state interest", "undue burden" and the like. In common law, it is used to define standards like "reasonable", "duty", "fiduciary duty", "intent" and so on.

Indeed, there is a long tradition of so-called "judge made law" in western jurisprudence -- it is called the common law, and a good part of our civil relationships with one another are subject to the common law. Apparently, "judge made law" seems to cause the most trouble for conservatives when its strikes down state or federal legislation which advances a puritanical social agenda; it barely seems to register with conservatives when the activist conservative judges strike down legislation regulating business activity, environmental activity, restrictions on machine gun ownership, and the like.

While self-serving rhetoric in an opinion does not give a case greater precedential value, the fact that a particular case is challenged repeatedly and upheld repeatedly (and expanded when upheld) does fit into the doctrine of stare decisis. No judge can claim to be conservative who does not respect the common law of stare decisis (including the obligation of one Supreme Court to respect the decisions of a prior Supreme Court, absent very defined circumstances of the type John Roberts described in his confirmation hearings). This is particularly true where a body of law has arisen based upon the original case (and where the original case has been repeatedly upheld in the face of several direct challenges. To do otherwise would be destablizing -- more or less, the opposite of conservatism.

Candidly, I do not see how you can overturn Roe without overturning Griswold, and dozens of other cases predictated on the right to privacy. As a libertarian, I do not see how the constitutional right to liberty means anything if a group of legislators can impose their moral views on the rest of us in areas of great personal sensitivity such as reproductive decisions. As a proponent of moderation by the courts, I do not see how implementing a conservative social agenda by ignoring stare decisis and the constitutional guaranty of liberty support principles of judicial restraint. I actually think John Roberts understood that, and it reflects why he was a consensus choice. I suspect Sam Alito could care less, which is why his nomination is likely to be much more contentious (under the "judicial activism has more than one face" view of what makes for an appropriate Supreme Court justice). Where Luttig stood on these issues is more of a mystery -- making it that much more surprising that Bush chose a known conservative activist like Alito over a stealthier one like Luttig.