Precedents Begin to Fall for Roberts Supreme Court

June 21, 2007
Supreme Court Memo
Precedents Begin to Fall for Roberts Court
By LINDA GREENHOUSE
New York Times

No Supreme Court nominee could be confirmed these days without paying homage to the judicial doctrine of "stare decisis," Latin for "to stand by things decided." Yet experienced listeners have learned to take these professions of devotion to precedent "cum grano salis," Latin for "with a grain of salt."

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose "unique circumstances" prevented them from meeting court filing deadlines was now "illegitimate"?

It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.

The fact is that the court regularly revisits and reconsiders its precedents, as Chief Justice William H. Rehnquist, the current chief justice's former boss and mentor, once observed succinctly. "Stare decisis is not an inexorable command," he said in a 1991 opinion that included, in a page and a half of small type, a list of 33 precedents that the court had overturned in the previous 20 years.

So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)

Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.

As a technical matter, the new decision, Gonzales v. Carhart, left the earlier ruling still on the books, doing its overruling "by stealth, without having the grace to admit that is what they were doing," in the words of Ronald Dworkin, the legal philosopher, who wrote a highly critical appraisal of the new decision in The New York Review of Books last month. "Justices Roberts and Alito had both declared their intention to respect precedent in their confirmation hearings, and no doubt they were reluctant to admit so soon how little those declarations were worth," Professor Dworkin said from London in an e-mail message.

Abortion, of course, is a special case. The debate over whether the court should or could overturn Roe v. Wade has been going on so long and with such intensity that it tends to pre-empt any discussion of the subtleties of stare decisis.

Senator Arlen Specter, the Pennsylvania Republican and abortion-rights supporter who at the time was chairman of the Senate Judiciary Committee, pressed Chief Justice Roberts at his confirmation hearing to agree with him that Roe v. Wade was not just a precedent, but a "super-duper precedent."

Mr. Specter's point was that because the court in 1992 had considered whether to overturn Roe but reaffirmed it instead, the 1973 precedent had acquired an inviolate status. His implication was that if Roe was just an ordinary precedent, it was as vulnerable as any other with which a new majority became disenchanted.

The nominee obviously knew exactly what Mr. Specter was driving at, but he gave away nothing. He acknowledged the historical accuracy of the senator's chronology, but would not follow him to the land of "super-duper" precedents.

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.