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Staring Down The Constitution
Roe and stare decisis.


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As the Senate Judiciary Committee begins hearings today on the nomination of Samuel Alito to serve on the Supreme Court, we will probably hear, as we did during the Roberts hearings, a great deal about the question of precedents in constitutional law. What is the value of stare decisis–of paying attention to past decisions as we confront new ones, of preserving and following those precedents? What are the conditions under which judges should abandon and overrule precedents?

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The Roberts hearings repeatedly returned to this subject, and the reason was obvious. Senators on both sides of the abortion question were intensely interested in whether Judge Roberts would be inclined to respect or reject the 1973 precedent of Roe v. Wade. Rebuffed by the judge’s declaration that he would not be drawn into discussing his views of any particular precedents that might come before the Court again in the future, senators engaged in a languid sarabande with Roberts about his general views on the maintenance and destruction of precedents in the Court’s constitutional decision-making. Nimbly taking three steps back for every two he was led forward in any direction, the soon-to-be chief justice gave no real comfort to anyone on either side of the abortion debate.

Are the Court’s rulings in Roe and in the 1992 case of Planned Parenthood v. Casey entitled to “respect” as precedents? Why yes, to be sure, said Roberts repeatedly. Is there any reason to regard respect for any precedent as absolutely binding under the doctrine of stare decisis? Why no, of course not, he said just as often; there are various valid reasons for overturning old rulings. Anyone who thought he knew, at the end of the hearings, how Roberts would vote on the survival of Roe and Casey as precedents, should the occasion ever arise, was deluding himself.

Correcting Past Wrongs

Rather than try to strain those tea leaves for one more reading, I want to focus on the new chief justice’s answer to the general question, When can or should a precedent in constitutional law be overturned? For all his agility at the witness table, Roberts was drawn into one or two flatly categorical statements on this general matter. Most clearly of all, while stating several times in his testimony that such overruling is “a jolt to the legal system,” Roberts declared at one point that “[i]t is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question” whether to overturn a precedent. True, he did attribute this view to the Supreme Court, saying it had “emphasized this on several occasions.” But about as clearly as he committed himself to anything in his testimony, Roberts committed himself to this.

But why should it be “not enough” that a justice believes “a prior ruling was wrongly decided,” for him to vote to overrule it? We are, after all, talking here about prior rulings that, according to a present-day justice’s understanding, plainly got the meaning of the Constitution wrong. To put it in the starkest possible terms, we are asking, what should be done about past majorities of the Court who violated the Constitution? For surely every action undertaken on the basis of a mistaken view of the Constitution’s meaning is a violation of the Constitution, is it not? The sensibilities of jurists are not so tender when it comes to mistakes and violations committed by other institutions and political actors, or even those committed by lower courts. Why should the justices of the highest court be so chary of correcting their own mistakes, or those of their predecessors?

One answer might be that in fact they are not so chary. The Congressional Research Service reports that as of the end of its last term, the Court had overruled its own prior decisions no fewer than 228 times since its history began. CRS does not differentiate the overturnings into those that concern constitutional questions and those that turn on statutory interpretation. But we are constantly told by the justices themselves that they more seldom correct themselves on statutory questions and more often on constitutional ones, on the ground that Congress can always intervene where the former but not the latter are concerned. (This makes less sense than it appears to, but that is a subject for another day.) So probably the majority of the Court’s 228 self-corrections are on constitutional questions. The most recent 140 of them began with Brown v. Board of Education in 1954, making up more than 60 percent of the Court’s self-reversals in less than a quarter of its history as an institution. That’s a lot of “jolts to the legal system,” some large, some small.

“Stability and predictability

In his September hearings, Chief Justice Roberts identified several reasons to refrain from overturning precedent: “Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.”

They certainly are. But take the first two for a moment. As an initial matter, it is far from clear how ruling today in the same way one ruled yesterday promotes “evenhandedness” or “fairness,” unless one simply defines these terms by reference to the third and fourth qualities Roberts mentions, “stability and predictability.” Those may be important elements of evenhandedness and fairness, but they can hardly be the whole of them. It may be that “fairness” above all–that word most hard to define and most readily assimilated to “justice” itself–requires departure from precedent just as naturally as adherence to it.

So what about “stability and predictability,” or as they were sometimes called by senators, “reliance interests,” or by Roberts himself, “settled expectations”? These are important considerations, but strictly speaking they are not quite legal considerations. They are public-policy considerations. If the difference isn’t clear, ask yourself why a court of law should perpetuate a wrong merely because it has continued until people became used to it and counted on its continuation. As Lincoln said, no one “has a right to do wrong.”

Settled expectations and the need for stable, predictable rules of law should make courts cautious about upending major, longstanding public policies. But that would include those policies not made by courts as well as those they have been responsible for. When John Marshall was invited to consider the constitutionality of the national bank in 1819, he had this to say about what we would now call “reliance interests,” except they rested on that which was done by Congress, not the Court: “An exposition of the Constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.” People had sunk great sums of money in the bank’s financial instruments, and were entitled to serious consideration of their need for predictability in the law. Nevertheless, had Marshall’s Court found adequate grounds for holding the bank itself an unconstitutional creation of the Congress, does anyone doubt it would have said so and destroyed those investments?

Caution about whether to upend people’s reasonable expectations of a stable set of legal rules is certainly important. But caution about whether such upending is the right thing is not the same as having a reason not to do the right thing when it has been determined to be the right thing. Stability, after all, cannot be a paramount consideration, capable of trumping the considered judgment that a precedent was wrongly decided. If that were so, would it not be logically impossible ever to do what the Court has done 228 times? Every decision not to overrule is by definition a blow struck for stability; but stability is not justice itself.

“The Constitution Itself

A favorite quotation of those who defend a strong form of stare decisis is from Justice Louis Brandeis, who said in 1932 that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” But in his next sentence Brandeis expressly rejected this axiom when it came to constitutional questions. So did Felix Frankfurter, who reminded his brethren in 1939 that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” Frankfurter pointed in a footnote to an even better statement of the proper rule, written in 1849 by Chief Justice Taney, who wanted it “regarded as the law of this court, that its opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.”

There is the right approach: the “force of the reasoning” about the meaning of the Constitution is all a precedent has to recommend it, in the end. Chief Justice Roberts spoke injudiciously, it must be said, when he sketched intervening considerations that could overcome a conclusion that a precedent was “founded in error.”

Much of the discussion in the Roberts hearings revolved around the Casey ruling’s reaffirmation of the Roe precedent–and we can expect that to be what happens in the Alito hearings as well. But the Casey ruling is an awful muddle when it comes to the treatment of precedent. The worst of the opinions in Casey, of course, is the infamous joint opinion of O’Connor, Kennedy, and Souter. These three, swelled to bursting with their self-importance, declared “the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” Why is some special reason needed? Because “[t]here is a limit to the amount of error that can plausibly be imputed to prior courts.” And why is that, when the Court has never spoken of an outer boundary on how much error it may claim to find committed by other institutions? Because the “legitimacy of the Court” as the institution charged with resolving our most “intensely divisive controvers[ies]” is at stake.

In short, myth-maintenance was what it was all about. Cowering paralyzed before their duty to say plainly whether Roe was rightly or wrongly decided, these three justices engaged in the dodge of saying “Maybe it was, maybe it wasn’t; but we make it our decision, and we are the important consideration here, not the Constitution.”

Court confusion

Chief Justice Rehnquist and Justice Scalia offered very different perspectives on stare decisis in their Casey opinions. It pains me to say that they didn’t do all that much better a job, though both at least plainly said that Roe was wrong and that it ought to be overruled. But they continued to make those two questions when they are really one. Rehnquist, for instance, took up the question whether “reliance interests” ought to trump the conclusion that Roe was wrongly decided, and noted (in that acerbic way of his) that “reproductive planning” would surely take account of any new legal rules in local jurisdictions in pretty rapid fashion, should Roe be overturned. But why should Rehnquist take it as an “interest” worth considering, that someone has “relied” on a ruling that deprives legitimate democratic majorities of their rightful authority to govern their communities?

Justice Scalia spilled less ink on the niceties of stare decisis in Casey, but he did introduce some confusion when he declared that the Court should only deal with “two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.” Scalia never addressed the question, what if the answer to only one of them is “no”?

What if a precedent was incorrectly decided but has produced a settled body of law? Is that sufficient cause to leave the precedent in place? Or what if no stable rules resulted from an earlier decision? Is that a sign that the earlier case was decided wrongly–a suggestion that “unworkability” necessarily ensues, by some natural law of inexorability, from mistakes in interpreting the Constitution? Or is it merely a sign that you have to work harder to “patch” your essentially correct interpretation? Scalia never addressed any of this. But he left his readers with the impression that he might be willing to tolerate the perpetuation of constitutional errors–violations, injustices, laid at the Court’s own doorstep–if they “worked” in some pragmatic sense.

Wading into the question of the uneasy balance between the common law practice of precedent-based legal rulings and a constitutional order of first principles can be hazardous business. But it doesn’t have to be fatal to good sense if we hold fast to a bit of wisdom from the English philosopher Thomas Hobbes that will keep our heads above water: “No man’s error becomes his own law; nor obliges him to persist in it. Neither, for the same reason, becomes it a law to other judges.”

Matthew J. Franck is a professor and chairman of political science at Radford University.



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