Look, Up in the Sky . . .

It's a bird . . . It's a plane. No, it's super-precedent!

Specter said he also told Roberts that the 1973 landmark abortion rights case Roe v. Wade has been followed by 38 Supreme Court rulings meant to refine or clarify its guidelines, and he asked, "Is Roe a super-precedent?"(emhapsis added)

Beldar has more.

Cheburashka (mail):
Do Super-Senators get two votes?
9.7.2005 11:19am
Todd Kincannon (mail):
Perhaps the answer will be found in super Scottish law.
9.7.2005 11:54am
Cheburashka (mail):
I would suggest that the correct strategy for Roberts if this actually comes up is to point out that there's no such term.
9.7.2005 12:01pm
Adam (mail) (www):
Let me rephrase the question: "Judge Roberts, under what circumstances do you believe that you are duty-bound to adhere to a precedent you believe was wrongly decided in the first instance?"
9.7.2005 12:02pm
WHerndon (mail):
It's a good, if somewhat open-ended question. I'd be curious to know what your reply would be, Adam. And what the replies have been of other Supreme Court justices in prior Senate hearings.
9.7.2005 12:11pm
Rhadamanthus (mail):
It is an intersting question and certainly would focus the mind of the poor judge who has to answer it.

My answer? It depends. Not merely on when the decision was made, or whether it was 100% wrong or just a minor error of interpretation, but what the effect wouldbe.

Roe is a simple example. I believe that at that time it was a wrong decision. Without re-hashing a debate on the 14th Amendment I would have voted to uphold the laws.

However. Since the Roe decision was made it has spawned both consolidation and expansion on the issue of privacy. The effect of the laws has been too great to possibly calculate. Even if wrong, overruling Roe after so long and so much effect would throw the stability of the Constitution into turmoil. By all means curtail future expansion. But if I were a SC justice I would have no choice but to follow precedent, because it is upon the stability of precedent that the judicial system is based.
9.7.2005 12:21pm
Jeremy (mail):
Ah, but do they let black children and white children go to the same schools in your state Rhadamanthus?

It is absolutely wrong to imply that the judicial system is based on blind adherence to precedent. Cases are overruled constantly in every court system.

The Supreme Court had no trouble overturning seperate-but-equal because of the injustice it created. It can also safely be said that a majority of those who think Roe v. Wade was wrongly decided believe it created injustice as well: the killing of unborn human beings. If that's not a sufficient reason to overturn precedent, it's hard for me to see what is. As I alluded to earlier, courts frequently overrule cases on such comparatively arcane points as whether constitutions prohibit punitive damages, social host liability, etc.

If I were up for confirmation and a senator asked: "Under what circumstances do you believe that you are duty-bound to adhere to a precedent you believe was wrongly decided in the first instance?" I would reply:

"Senator, I believe wrong precedent should always be revisited when the wrong precedent manifestly infringes upon the rights of citizens or otherwise fosters serious injustice. I believe precedent on other points should be revisited when it is clearly wrong. Wrong precedent which is not clearly wrong, does not manifestly infringe upon the rights of citizens, and does not otherwise foster serious injustice should probably be left alone under the principle of stare decisis. Generally, the doctrine of stare decisis should allow reasonable judicial interpretations of close questions to stand. The doctrine of stare decisis should not function as a one-way street to the hell of terribly wrong precedents."

Of course I'd never get confirmed for anything, but what the heck.
9.7.2005 12:38pm
WHerndon (mail):
It would seem to me that liberals are thinking of Roe V Wade when they ask the sort of question Adam poses. As Rhada- writes, though, it's a difficult question (for some of us) as to whether Roe ought to be overturned.

In my case, I think Roe was bad law, wrongly decided and poorly written (aside from historical interest).

On the other hand, I think other constitutional arguments could theoretically be mustered on its behalf and I am unsure that the now-33-year-old law should be overturned.

At time goes on, respect for stare decisis should gain more weight unless a decision were drastically wrong and corrupted the function of the courts.

Has Roe done that? Well, certainly it's existence has corrupted the judicial nomination process. Roe is the 600-pound gorilla. But has it given birth to a hoard of misgotten rulings? I don't think so.

As such, the same argument that Rehnquist used to finally accept the existence of Miranda could be applied to Roe.

In short the answer to Adam's question is exceedingly difficult, even for someone like me who deplores Roe.
9.7.2005 12:39pm
unhyphenatedconservative (mail):
Drat, Jeremy, you beat me to the Brown example. Precedent is only super-precedent when liberals like it.
9.7.2005 12:54pm
Jeremy (mail):
Let me throw out one more point:

Constitutional stare decisis is something of a different ballgame than other types of stare decisis. When a court screws up a statutory interpretation, the legislature can nearly always go back and patch the problem. If the legislature chooses not to "fix" the statute, the legislature is, in a sense, ratifying the court's interpretation. (I'm ignoring finer points like executive signatures on legislation, etc.)

But no one can seriously argue that the only reasonable response to a wrong interpretation of the U.S. Constitution is a constitutional amendment. It is perfectly reasonable, however, for Presidents and Senators to campaign for votes with promises to appoint judges who'll fix the wrong precedent. In a very real sense, the nomination and confirmation process of SCOTUS justices is the Constitution's own self-correction mechanism. It allows wrong interpretations to be righted through the political process. Adherence to some foolish super-stare decisis doctrine destroys the Constitution's built-in self protection against wrong interpretations and bad judges.
9.7.2005 12:55pm
Tony Blankley published a column recently in which he said that technology would soon make Roe irrelevant. His claim is that unrestricted abortion is only a right until fetal viability, which the decision describes as the ability of a fetus to potentially survive outside the womb with artificial support. He then describes two medical research efforts whose goal is to enable a fetus to survive outside the womb, almost from the moment of conception.

Is he correct? If these research efforts are successful, would they effectively nullify Roe?
9.7.2005 1:21pm
Thorley Winston (mail) (www):
Actually while Roe is probably at the top of the list for the social issues voters, they're probably more concerned that a Roberts Court would overrule or at least curtail some of the Commerce Clause (e.g. Wickard) and General Welfare Clause decisions from the New Deal era. You know, back when the SCOTUS diverged about a hundred years or so of precedent after FDR threatened to pack the Court.

Funny how we didn't hear about the virtue of "superprecedents" back then.
9.7.2005 1:31pm
Thorley Winston (mail) (www):
Tony Blankley published a column recently in which he said that technology would soon make Roe irrelevant.

I think you're right about that but I believe it will be more likely to go in the opposite direction. We've already seen pills like RU482 which (regardless of whether the FDA approves it or not) which enable people to have an abortion in the convenience of their own home without going to a clinic. IMO the technology will probably advance to the point where it would be impossible, even if abortion were outlawed, to stop it entirely.
9.7.2005 1:34pm
Stephen Aslett (mail):
Well, if one wants to develop a doctrine of super-precedent, I doubt Roe v. Wade is one of them. The fact that the decision is so recent would weigh against it, as would the fact that abortion is still highly controversial.

I'm trying to think of which cases, if any, would be super-precedent. Marbury v. Madison, McCulloch v. Maryland, Cohens v. Virginia, and Brown v. Board spring to mind. Any others you can think of?
9.7.2005 1:39pm
Perhaps the correct answer is "yes, one that can only be overruled by a super-legislature"

Or by a "super-justice"

at which point he rips off the suit to reveal that he's wearing a Superman costume underneath

* awkward silence ensues *
9.7.2005 1:54pm
He's not the only one. Judge Luttig has used super stare decisis:


and here
9.7.2005 1:56pm
I think the recent networking of citations research that's been discussed in recent posts here suggests that there empirically are superprecedents, though they don't legally have a stronger basis than any other precedent. Instead, those precedents are just much more influential than others. Roe is probably one of those.
9.7.2005 2:19pm
SimonD (mail):
I don't think the answer should be that difficult. Roe was wrong the day it was decided, it is wrong today, and it should be overruled, as should every case that relies on it. If that creates chaos, then the blame does not lie with the courts. If you take my land, and build a house on it, and I hire the big bad wolf to huff and puff and blow your house down, if that causes chaos for you, who's to blame? You, because you build your house on land that wasn't yours. The pro-choice lobby has constructed whatever they've constructed on a wrongly-decided case, when they claim they could have achieved the same thing through legitimate means. So let them pursue it through legitimate means, and in the meantime, a case that was wrongly decided should be overruled. We live in a system governed by a written document, and no amount of stare decisis can ever trump the text.

In constitutional cases, precendent should be taken as a guide, but never as a binding authority when it conflicts with the text. I agree with Justice Thomas on this one. If the precedent is right (meaning, reconcilable with the constitution), use it. If the precedent is wrong, overrule it.
9.7.2005 4:21pm
SimonD (mail):
Or by a "super-justice"
Nino in skintight lycra? I don't think that's a sight even his most ardent fans want to see.

(Although the "S" logo would be a neat happenstance)
9.7.2005 4:23pm
Adam (mail) (www):
If precedent can be overruled whenever it is perceived as "wrong", then there really is no such thing as precedent.

I think the factors considered by the Court in Dickerson and Casey are helpful for this analysis -- are the same arguments being presented now as were presented the first time? how much does our society rely upon the precedent in the way people order their lives? was the original precedent based on truly faulty factual assumptions?

Remember -- just the year before the Casey decision, Justices O'Connor, Kennedy and Souter all voted to overturn direct Supreme Court precedents decided by 5-4 votes to allow victim impact testimony to come into trial in Payne v. Tennessee. It's worth looking at in order to see contrasting views of precedent. From the Chief (cites deleted):
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent "is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right." Nevertheless, when governing decisions are unworkable or are badly reasoned, "this Court has never felt constrained to follow precedent." Stare decisis is not an inexorable command; rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision." This is particularly true in constitutional cases, because in such cases "correction through legislative action is practically impossible." Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases such as the present one involving procedural and evidentiary rules.

Applying these general principles, the Court has during the past 20 Terms overruled in whole or in part 33 of its previous constitutional decisions. Booth and Gathers were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions. They have been questioned by Members of the Court in later decisions and have defied consistent application by the lower courts.

Scalia, with Kennedy and O'Connor:
Today, however, JUSTICE MARSHALL demands of us some "special justification" - beyond the mere conviction that the rule of Booth significantly harms our criminal justice system and is egregiously wrong - before we can be absolved of exercising "[p]ower, not reason." I do not think that is fair. In fact, quite to the contrary, what would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.

It seems to me difficult for those who were in the majority in Booth to hold themselves forth as ardent apostles of stare decisis. That doctrine, to the extent it rests upon anything more than administrative convenience, is merely the application to judicial precedents of a more general principle that the settled practices and expectations of a democratic society should generally not be disturbed by the courts. It is hard to have a genuine regard for stare decisis without honoring that more general principle as well. A decision of this Court which, while not overruling a prior holding, nonetheless announces a novel rule, contrary to long and unchallenged practice, and pronounces it to be the Law of the Land - such a decision, no less than an explicit overruling, should be approached with great caution. It was, I suggest, Booth, and not today's decision, that compromised the fundamental values underlying the doctrine of stare decises.

Justice Marshall:
Power, not reason, is the new currency of this Court's decisionmaking. . . .

In my view, this impoverished conception of stare decisis cannot possibly be reconciled with the values that inform the proper judicial function. Contrary to what the majority suggests, stare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of "the judiciary as a source of impersonal and reasoned judgments." Indeed, this function of stare decisis is in many respects even more critical in adjudication involving constitutional liberties than in adjudication involving commercial entitlements. Because enforcement of the Bill of Rights and the Fourteenth Amendment frequently requires this Court to rein in the forces of democratic politics, this Court can legitimately lay claim to compliance with its directives only if the public understands the Court to be implementing "principles . . . founded in the law rather than in the proclivities of individuals." Thus, as JUSTICE STEVENS has explained, the "stron[g] presumption of validity" to which "recently decided cases" are entitled "is an essential thread in the mantle of protection that the law affords the individual. . . . It is the unpopular or beleaguered individual - not the man in power - who has the greatest stake in the integrity of the law."

Carried to its logical conclusion, the majority's debilitated conception of stare decisis would destroy the Court's very capacity to resolve authoritatively the abiding conflicts between those with power and those without. If this Court shows so little respect for its own precedents, it can hardly expect them to be treated more respectfully by the state actors whom these decisions are supposed to bind. By signaling its willingness to give fresh consideration to any constitutional liberty recognized by a 5-4 vote "over spirited dissen[t]," the majority invites state actors to renew the very policies deemed unconstitutional in the hope that this Court may now reverse course, even if it has only recently reaffirmed the constitutional liberty in question.
9.7.2005 4:40pm
Clayton E. Cramer (mail) (www):
What is a "superprecedent"? I believe we used to call it a provision of the Constitution. You know, something that judges were supposed to follow, even if it didn't make them popular at DC cocktail parties.

There is a way that the Court could have sorta kinda reached Roe's results—at least with respect to the first trimester. The Court could have made an original intent argument, that the Ninth Amendment protected those rights reserved to the people, and that based on the state of state laws in 1791, abortion, at least in the first trimester, was not criminal, and thus a right reserved. Blackstone's Commentaries, Book I, Ch. I, is very clear that abortion was only considered criminal after the fetus had started kicking, and from what I have read, the states at least initially followed this rule in determining whether abortion was a criminal matter or not:
Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
Of course, if you start to make arguments based on original intent, then the whole liberal structure of our laws collapses in a little heap, and we might have to trust the people's representatives to make laws unless they directly contradict the Constitution. And what then would lawyers and law professors do to control our society? They would be reduced to persuasion of the masses.
9.7.2005 5:18pm
WHerndon, Roe has corrupted more than the judicial nomination process. It has corrupted political discourse and therefore the entire political process. By removing the possibility of legislative compromise and solution regarding an issue that is clearly within the proper scope of legislative authority, the Court has denied a majority of citizens an opportunity to participate, through their representatives, in the formulation of policy, and has thereby poisoned the political environment. Cleanup starts when Roe and its antecedent, Griswold, are reversed. Along with a reversal of Roe should come a clear interpretation of the commerce clause as a limit on federal power, as well as an unequivocal affirmation that the privileges and immunities clause ensures the right to travel from one state to another for any legitimate purpose, even if the purpose of that travel is to obtain a medical procedure which is illegal in the state of origin but legal in the destination state in which it is performed. In other words, no federal interference in abortion rights policy (or any other local issue, for that matter). It might take more than one case, but I would bet that it can all be accomplished within a single term.
9.7.2005 5:28pm
Daniel Chapman (mail):
ROA: I'm surprised no one has pointed this out yet, but although you're right that a child that was "viable" from conception would present a problem for Roe, Roe is no longer the governing law.

Casey held that a law is unconstitutional if it presents an "undue burden" to the right to get an abortion with no thought to viability or the trimester framework. Hence, laws barring partial birth abortion are unconstitutional despite the fact that they are clearly allowed by Roe.
9.7.2005 5:45pm
Daniel Chapman. Thanks for the information. Since Specter, and everyone else for that matter, always refers to Roe they could not object if Casey was overturned and Roe left intact could they? Ha!
9.7.2005 6:24pm
Seamus (mail):

If you take my land, and build a house on it, and I hire the big bad wolf to huff and puff and blow your house down, if that causes chaos for you, who's to blame?

I think the law might well frown on such an exercise of self-help, given how likely it is to result in a breach of the peace.
9.7.2005 6:45pm
Casey is indeed a good starting point on this issue. One criterion addressed therein is that factual developments SINCE the time of the previous decision should make it clear that the decision was incorrect. For example, although "separate but equal" may have looked good on paper, decades of subsequent experience demonstrated that it was really just a vehicle to perpetuate discrimination. Many of the arguments against Roe (such as "abortion involves the killing of unborn persons") may be correct or incorrect, depending on your point of view, but events since Roe have not made the truth any more clear. It's not like people in 1973 failed to understand that a fetus ultimately becomes a baby.

To go further, though, one needs to look at Scalia's scathing dissent (does he write any other kind?) in Lawrence v. Texas. In that opinion, he essentially says that while Casey says what it says, the majority completely ignored the standards set in Casey in their eagerness to overturn Bowers v. Hardwick. He points out, among other things, that no factual developments since Bowers had illuminated the issue of whether there is a fundamental right to engage in sodomy. And he pointedly notes that, under the standard actually employed in Lawrence v. Texas, there is absolutely no justification for upholding Roe as precedent. The clear implication is that, if and when the day arrives when Roe is overturned, Scalia will take no small measure of joy in hoisting the result-oriented liberals on their own petard.
9.7.2005 9:20pm
Rhadamanthus (mail):
Ah, but do they let black children and white children go to the same schools in your state Rhadamanthus?

It is absolutely wrong to imply that the judicial system is based on blind adherence to precedent. Cases are overruled constantly in every court system.

I take your point Jeremy; I must apologise because I left a point out of my response. That factor was that when the decsion would lead to a more inclusive view or rights, precedent diminishes in value (though it is still of crucial importance). Where a decision would lead to a more exlusionary attitude, precedent must be given greater significance. Why? Because there is a Bill of Rights that implies a particular importance of individual rights- and yes, before any historians pop up I am aware that the Framers were divided on the subject and that Madison's proposals were by no means a priority.

Steve makes an interesting point; I actually believe that Scalia's dissent in Lawrence was on the money. In fact I see it as a finely constructed and pointed dissent that could easily be used as a model. However, I believe the court should have used the strict scrutiny test, finding a fundamental right to be at issue.

Above all though what has emerged surely is that precedent cannot be given absolute, nor zero, weight. The weight of an individual precedent will depend on the facts and history of the relevant decision.
9.8.2005 12:17pm
Rhadamanthus (mail):
Oh, and to answer the first part of your question Jeremy, I'm British- hence no state. Support Louisville in collegiate sports though- go Cards.
9.8.2005 12:18pm