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?


chuck b. said...

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

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.

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.

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.

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"!

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.