Bench Memos

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Roberts on the Role of Judges--Overturning Wrong Precedent


In the April 2003 hearing on his nomination to the D.C. Circuit, John Roberts succinctly explained that the Supreme Court should accord no deference to wrong precedent: “[O]bviously if the decision is wrong, it should be overruled. That’s not activism. That’s applying the law correctly.” (p. 71)

The Left, by contrast, embraces a sort of Brezhnev doctrine in which the Court’s illegitimate power grabs in its favor are sacrosanct and any effort to overturn them is mislabeled as activism. Thus the bizarre “Nietzschean vision” (in Scalia’s apt phrase) of stare decisis set forth by the Court in Planned Parenthood v. Casey (declining to overturn Roe) but promptly abandoned by it in Lawrence v. Texas (overturning Bowers v. Hardwick).

While many on the Left will claim that Roberts’s general proposition is controversial, it is in fact elementary and flows directly from the justice’s oath of office. As the ultraliberal Justice Douglas put it, “A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.”

By the way, it has been thought that an exception to this general rule might be necessary for “decisions that have become so embedded in our system of government that return is no longer possible” (Scalia’s phrase). But any such decisions are, at best, extremely rare and, as I intend to show in an essay one of these days, are in fact demonstrably non-existent. Stated somewhat differently, I will explain how it is possible to overturn any wrong decision, constitutional or statutory, without causing any serious disruption.


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