Bench Memos

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Greenhouse Full of Fog


Linda Greenhouse has a “Supreme Court Memo” in today’s New York Times–not a news piece exactly, but it is not labelled “analysis” (that most irresponsible of journalistic categories), and neither is it on the op-ed page or saved for the “Week in Review” section (where it probably belongs).  What it most assuredly is, however, is incompetent on the subject it treats: stare decisis, or the doctrine of precedent.  Parts of it read like a “gotcha” piece on Chief Justice Roberts and Justice Alito, noting their “paying homage” to stare decisis in their hearings and their subsequent votes to overturn some precedents.  Other parts of it provide some episodic history of recent overrulings of precedents, and speculate about which might fall next.  And the piece ends with a weirdly cynical, deeply confused, and highly political account of why precedents sometimes get jettisoned. 

I’ll come to that conclusion in a moment, but first let’s consider Greenhouse’s treatment of Roberts and Alito.  She writes: “Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. [has the Times style book done away with the comma before "Jr."?] assured their Senate questioners at their confirmation hearings that they, too, respected precedent.”  Then Greenhouse continues as though they were somehow prevaricating about this, the evidence being their occasional votes to overrule a precedent.  But of course they declared they “respect” precedent; in a common-law-based legal system, that is de rigueur.  What they did not do, and could not have done if they were worthy to serve on the bench, is declare themselves bound by precedents that they come to believe are mistaken, especially in the field of constitutional law.  (For a fuller treatment of this matter, following the Roberts hearings and on the eve of the Alito hearings, see my “Staring Down the Constitution,” which faulted Roberts for one incautious remark on this subject, which I don’t believe Alito imitated when it was his turn.)  So of course there is no inconsistency between what they said before the Judiciary Committee and what they have done on the bench

Here are the concluding paragraphs of Greenhouse’s article:

When the court explicitly overturns precedent, it tends to offer a checklist of justifications: the precedent has eroded over time through disuse or disregard (this was the majority’s stated reason for discarding the “unique circumstances” precedents in last week’s decision, Bowles v. Russell), or it has been a source of confusion in the law, or experience has proven it “unworkable.”

But the real reason is usually that a changing court in changing times has come to see the question in a new light. In Bowers v. Hardwick in 1986, the Supreme Court dismissed as “facetious” the notion that the Constitution offered protection for gay rights. Overturning that decision 17 years later, Justice Anthony M. Kennedy declared for the majority in Lawrence v. Texas: “Bowers was not correct when it was decided, and it is not correct today.”

Still, the court will strive to provide an explanation, if only to avoid the kind of accusation that Justice Thurgood Marshall leveled at the majority when, taking advantage of two retirements, the court reversed course and by a vote of 5 to 4 made “victim impact” testimony admissible in death penalty hearings.

“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall declared on the final day of the court’s 1990 term. Two hours later, he announced his own retirement, his words still hanging in the air.

Let’s unpack the bushels of nonsense here.  Greenhouse begins by describing a “checklist of justifications” the Court may use for overturning a precedent.  Tellingly, she leaves out the one best and most decisive (I would even say sufficient) reason for doing so: that the precedent was wrong!  Then in her next paragraph, as if she were letting us in on the inside dope of how the Court really works (“But the real reason is . . .), she actually comes to that justification–but muddles it by describing it as “a changing court in changing times [coming] to see the question in a new light.”  Yeah, you betcha.  When a majority on the Court changes its view of a constitutional question, it acts on its new view.  Who would have it otherwise?  Note, however, that Greenhouse manages to describe this as “seeing things in a new light,” not as a considered judgment about how to interpret the Constitution correctly.  Thus she converts a perfectly defensible phenomenon into something that appears mildly scandalous: it’s all about “[p]ower, not reason,” you know.

Interestingly, Greenhouse’s own example here of a precedent being overturned–of Bowers being overturned by Lawrence–does lend credence to her cynical take on stare decisis.  For while Justice Kennedy did say in Lawrence that Bowers was “not correct” and never had been, which is just what should be said whenever a precedent is overturned, his argument to that effect was laughably feeble and utterly failed to demonstrate the incorrectness of Bowers.  It is the arguments and their quality that matter, but Greenhouse is so uninterested in them that she cannot forebear to be cynical even about the outcomes she applauds.  This is underscored by her saying, in the third paragraph above, that “[s]till, the court will strive to provide an explanation . . .”  Still?  Has Greenhouse failed to notice in all her years of covering the Court that explanation is the justices’ stock in trade?  That it is what they do?  That it is very nearly the distinctive mark of the judiciary–that alone of all the three branches, the courts are expected to explain their actions by reference to publicly defensible reasons?  For Greenhouse, the “explanations” are never the explanations.  This is an attitude I expect from the more numbskulled members of the political science profession.  It has deeply infected the law schools as well, and now it has seized journalism too.

And her conclusion, oh so melancholy in its fond remembrance of the late great Justice Thurgood Marshall.  This is not the occasion for a review of the jurisprudential high-jinks of that most political of justices.  Suffice it to say that he never met a precedent he cared one whit about if it stood in the way of his policy objectives.  And is this not, after all, the man who achieved the pinnacle of fame in the legal profession by persuading the Supreme Court in 1954 to reject the strictures of a 58-year-old precedent?


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