[Ilya Somin (guest-blogging), April 11, 2006 at 11:35pm] Trackbacks
When Should the Supreme Court Follow its Own Mistaken Precedents?

In this article, law professor Robert Nagel makes a strong argument that the Supreme Court's rhetoric (if not its practice) gives too much respect to its own precedent and not enough to the Constitution that the precedents are supposed to be expounding. After all, Judges swear an oath to uphold the Constitution, not the Court's prior precedents. At least in principle, when the precedent conflicts with the Constitution, it is the precedent which should give way.

I agree with many of Nagel's points. But like most other commentators, Nagel does not give a fully satisfactory account of when a flawed precedent should be maintained because reversing it would be too disruptive of settled expectations ("reliance interests," as lawyers call it). Nagel argues that the expectations created by Roe v. Wade are not enough to justify keeping it in place. But he fails to articulate any kind of general theory of how strong reliance on a flawed precedent has to be in order to justify not overruling it.

In at least some instances, we may have to make peace with precedents that are wrong. For example, there is a strong originalist argument that the Court made a mistake in holding that Congress has the power to issue paper money in the Legal Tender Cases of the 1870s. Article I of the Constitution gives Congress the power to "coin Money," and it is highly likely that the Framers and ratifiers really did mean COIN, since hyperinflation caused by excessive issuing of paper money was one of the principal economic problems that the Constitution was intended to solve. In Federalist 10, James Madison denounced "a rage for paper money" as one of the types of abuses that the Constitution would prevent (though Federalist 10 focuses on nontextual constraints). Federalist 44 refers to "the pestilent effects of paper money on the necessary confidence between man and man." Madison's Notes on the Constitutional Convention seem to conclude that Congress lacked the power to "mak[e] . . . bills a tender either for public or private debts."

Yet even if paper money is unconstitutional as a matter of text and original meaning, a Supreme Court decision banning paper money today might have such catastrophic economic effects that even justices who thought that was the right outcome as an original matter would be highly unlikely to overrule precedent. If they did, the likely result would be a pitched political battle with Congress and the president that the Court would almost certainly lose.

While it might be easy to agree that the Legal Tender Cases should not be overruled, it is much harder to develop a coherent theory of reliance interests in constitutional law. The lack of such a theory makes it easier for partisans of all stripes to claim that their preferred precedents should be untouchable because they protect imajor reliance interests, while arguing that the other side's are ripe for overruling.

Plessy v Ferguson should be fully in force as precedent and stari decisis, after all, it is, or was, a Fantastically Super Duper Precedent Extraordinaire (valid and upheld for far longer than Super Duper Roe v Wade), and millions of people and hundreds of federal, state, and local governments and private organizations relied on it and organized their daily acts around it.

Far more important than that amended Constitution thing.
4.12.2006 12:43am
Randy R. (mail):
What?! You mean the founders of our constitution may not have been able to foresee the use of paper money??? But, but, but -- they were our founders! We must follow everything they said! They are by definition infallible! And their vision of the world is the one that must control us now and forever, amen brother! Just ask Scalia....

If Scalis really believes in original intent, he should be giving speeches on the immorality of paper money, not to mention the electronic blips that pass for funds today. Grind our economy to a halt, sir, but at least we would see you have the conviction of your principles.
4.12.2006 12:51am

Nagel does not give a fully satisfactory account of when a flawed precedent should be maintained because reversing it would be too disruptive of settled expectations

Why should a flawed precedent be maintained at all if it was wrongly reasoned and wrongly decided? Is it a good idea for the Supreme Court to be deciding that a wrong decision should not be reversed because in the opinion of the Court that got it wrong in the first place thus causing the "reliance" too many people rely on that wrong decision? What kind of respect for "the rule of law" and the separation of powers, and the Constitution does that breed?

Why, it breeds what we have now, a very politicized court and nomination process, and a bunch of superannuated geezers who decide what they like and then decide cases accordingly using the, per Arthur Schlesinger, Yale Law Approach: decide what decision you want first, then pick and choose your cases to get that result.
4.12.2006 12:52am
Jim Lindgren (mail):
BTW, Professor Andrew Kull has argued that the principle in Plessy was not overruled in Brown: some racial classifications are permitted and some aren't; and a majority of the US Supreme Court decides which are and which aren't. According to Kull, what's allowed is what one Warren Court justice called "benign racial sorting." What's changed is what the Court considers "benign," not the effective legal rule.
4.12.2006 1:15am
Natham Crewott (mail):
Overturning the Legal Tender cases doesn't seem to pose that much of a problem. If the court decided to do this, the Constitution would be amended to grant Congress the power to issue paper money. Everything goes back to normal.
4.12.2006 1:53am
there is a strong originalist argument that the Court made a mistake in holding that Congress has the power to issue paper money

That is a plausible interpretation of Madison's comments, but Hamilton in his Report on a National Bank implies that such a prohibition applies only to the states:

The emitting of paper money by the authority of Government is wisely prohibited to the individual States, by the National Constitution. And the spirit of that prohibition ought not to be disregarded, by the Government of the United States.

To say that only the "spirit" of the prohibition should not be ignored by the federal government suggests that Hamilton believed that the lack of an explicit prohibition on the federal government means that the federal government may issue paper money.
4.12.2006 1:59am
HLSbertarian (mail):
Randy R. said: What?! You mean the founders of our constitution may not have been able to foresee the use of paper money??? But, but, but -- they were our founders! We must follow everything they said! They are by definition infallible! And their vision of the world is the one that must control us now and forever, amen brother! Just ask Scalia....

Read the post again. The founders clearly DID foresee the possibility of paper money. You're really saying that they didn't foresee the widespread reliance on gov't-issued paper bills that followed a decision interpreting the Constitution contrary to their intentions. Gov't issued paper money is not some new-era condition before which strict constructionists stand powerless, it is instead exclusively a result of not listening to strict constructionists in the first place.
4.12.2006 2:02am
Additional note: Hamilton then goes on to weigh the costs and benefits of issuing paper money, which would be pointless if he believed that the federal government lacked the authority to issue it.
4.12.2006 2:02am
Mr. P:
A little over 3 years ago I asked a related question:

At what point does dissenting from, say, a series of related cases become a failure to heed stare decisis principles?

For example, since Seminole Tribe, and on through all the fun state sovereign immunity decisions including the latest like Garrett and FMC, we've seen the exact same 5-4 split on the Court.

At what point are the 4 dissenters "supposed" to give up?
4.12.2006 2:06am
MR (mail):
It seems like a critical but silent assumption is being made here - that one court can overturn a precedent with certainty that the old rule was wrong and with certainty that the new rule is right.

How could the Brown Court be sure that the Plessey Court got it wrong? Sure, people might disagree with the rationale of Roe v. Wade, but how can we be certain those people are right? So certain that it should rolled back 30+ years later?
4.12.2006 2:06am
Andrew Hyman (mail) (www):
To Ilya Somin:

Your arguments about the unconstitutionality of paper money are incorrect, I'm afraid. In 1789, Congress chartered the First Bank of the United States, and authorized issuance of paper bank notes. Doesn't that suggest that the framers of the original Constitution viewed paper money as being constitutional? Madison wrote in 1787 that the Constitution "would not disable the Govt from the use of public notes as far as they could be safe &proper...."

Article I, Section 9 of the Constitution explicitly forbids the states from making anything but coins "tender in payment." However, there is no corresponding explicit prohibition against the federal government. Elbridge Gerry's motion to do so was defeated in the constitutional convention.

Nathaniel Gorham said during the constitutional convention that he "was for striking out [the power of Congress to emit bills of credit], without inserting any prohibition," and that's exactly what happened. Gorham envisioned that Article I, Section 8 would give Congress power to "borrow money on the credit of the United States," and therefore it would sometimes be necessary and proper for Congress to issue paper money. Indeed, money is nowadays created when Congress sells U.S. Government Securities in order to pay interest on the national debt, and then those U.S. Government securities are purchased on the open market by the Federal Reserve using new money. Note that Article I, Section 8 explicitly contemplates U.S. Government "securities."

According to Nathaniel Gorham, "The power [to emit paper money], so far as it will be necessary or safe, will be involved in that of borrowing." And that's exactly how the system works today. To the extent that there is any uncertainty nowadays about whether Gorham's views reflected the views of the other framers, invocation of the doctrine of stare decisis certainly seems very appropriate.

The case of Hepburn v. Griswold (1870) initially declared greenbacks unconstitutional, but that was based on the Fifth Amendment's Takings Clause, rather than based upon any implied constitutional prohibition against printing paper money. And, of course, Hepburn was later reversed.

Paper money is perfectly constitutional.
4.12.2006 2:07am
Randy R,

Did you read the post? The OP quoted a federalist paper: "the pestilent effects of paper money on the necessary confidence between man and man." There was no need to "foresee the use of paper money" because it already existed!

Your point about electronic fund transfers are also off the mark because that's really an artifact of fractional reserve banking; something I don't believe the Constitution concerned itself with.
4.12.2006 2:13am
Brian Frye (mail) (www):
First, I think Nagel's point depends on agreement as to what qualifies as the "right answer." As such, it is relevant to the dispute between Scalia and Thomas (when they agree as to the original meaning) as to what weight to accord precendent. Nagel and Thomas say to disregard it, when it's wrong.

As for paper money, I think the founding-era is what it was backed by, not what it was made of. A note was fine if backed by specie. The dispute was over notes backed by credit.
4.12.2006 2:30am
Brian Frye (mail) (www):
Sorry, that should be, "As for paper money, I think the founding-era dispute was over what it was backed by, not what it was made of. A note was fine if backed by specie. The dispute was over notes backed by credit."

Incidentally, there are several new and interesting articles on the founding-era understanding of money at the American Antiquarian Society's Common-Place website.
4.12.2006 2:34am
The First Bank of the US was incorporated by the federal government, but the federal government held only a minority stake (20%) in it. So it's not altogether clear that the federal government was the actual entity issuing the paper money. And like any private bank, the First Bank of the US could not issue virtually unlimited amounts of paper money, unlike a government.
4.12.2006 2:37am
While it might be easy to agree that the Legal Tender Cases should not be overruled, it is much harder to develop a coherent theory of reliance interests in constitutional law. The lack of such a theory makes it easier for partisans of all stripes to claim that their preferred precedents should be untouchable because they protect imajor reliance interests, while arguing that the other side's are ripe for overruling.
Whatever such a theory would look like, I'm unconvinced that it would solve the problem you discuss. I don't think any acceptable theory of which incorrect precedents should be overruled can be neutral about the merits of the substantive policies involved. The fact that overruling Plessy was OK, has to have something to do with the fact that the Plessy line of cases, and the apartheid they made possible, was unjust and evil. You can say basically the same thing about Roe if you think abortion is murder.

As a first pass, perhaps "unjust incorrect precedents should be overturned, while incorrect precedents that are acceptable as a matter of justice should be upheld"?
4.12.2006 3:07am
Patrick (mail):
Speaking of Yale:

'Indeed, there is a fundamental contradiction when such a course is taken. The purpose of the Court which does it is to establish as law a better rule or doctrine. For this the Court looks to the binding effect of its decisions as precedents. Treating itself as possessed of paramount authority over the law in virtue of the doctrine of judicial precedent, it sets at nought every relevant judicial precedent of the past. It is for this reason that it has been said that the conscious judicial innovator is bound under the doctrine of precedents by no authority except the error he committed yesterday.'

Sir Owen Dixon, Chief Justice of Australia, on the occasion of receiving the Henry E Howland Memorial Prize at Yale, 19 September 1955, expounding on one problem with judicial innovation. Notably, he (as is now the norm in Australia) regarded himself as bound by precedent even when he had dissented in the relevant case. In one case he did so when had he continued his dissent he would have formed the majority.

Of course, that doesn't mean that every precedent is permanent. A case badly decided might still be overturned, and a case might still be distinguished, for example.
4.12.2006 3:22am
logicnazi (mail) (www):
So I gave this question a great deal of thought in respect to Roe v. Wade. Despite being extremely strongly pro-choice (I see no problem with abortion at any point before birth) I've never been able to support the deciscion as it seemed so arbitrary and unmotivated. While the argument about implied privacy and liberty is a good one I could never follow how it didn't prove more than any mainstream constitutional scholar would even consider (a constitutional protection for weed smuggling the same way their is an implied constitutional protection for abortificants/abortion tools). However, recently I came to the conclusion that it should be preserved under stare decisis.

The factors that convinced me this deciscion warranted respect under stare decisis were the following and I feel pretty similar about the Miranda ruling.

1) It expands (without gross giving only whites rights) individual liberty. In particular they increase the power of the individual to resist government intrusion/manipulation of their lives/property.

I think a precedent which increases governmental power at the expense of individual liberty should only be respected (if wrong) if the other factors are completely overwhelming. Thus programming a bias toward liberty into the constitution and encouraging it to accumulate rather than disipate over the years.

I don't really think federalism issues tilt toward either side at this point.

2) Widespread reliance. In particular deciscions that have been integrated into the fabric of society should very rarely be overruled while even considerable reliance in specialized fields isn't as important. Reliance isn't necessarily the same thing as agreement (look at abortion) but it is a measure of how disruptive switching back and forth is going to be.

3) Lack of corrosive effect on the law. Both Miranda and abortion can relatively easily be isolated. Even if I think it is unprincipled the supreme court can easily say that abortion impacts privacy in a way drugs, prostitution or other victimless crimes don't. However, some rulings can't easily be isolated to a single small class as the SC will just be plagued with constant cases trying to determine the deliniations of the rule. Filburn is somewhat in this class but the reliance on filburn is overwhelmingly huge.

4) It doesn't cause consequences which would be regarded as majorly harmful by a significant majority of the country and indeed are harmful (yes this does call for a bit of judicial judgement about policy but I don't think that is all bad). In fact I tend to believe close cases should be resolved by judicial judgement on policy.

Sure there aren't any principled reasons for these 4 points other than I think they make a good heuristic for what will cause the best results. However, that is really what we want in this situation. Unlike real precedent this sort of meta-precedent doesn't need and probably shouldn't have an explicit official/semi-offical test/deciscion procedure.

It seems to be one of the great stregths of our constitutional system that judges seem to be able to correct the bad deviations from our constitution but those changes that truly are necessery will eventually find a court who will rule for them and they tend to stay (filburn again which I think was clearly necessery for a large industrial nation). Making this two precisce would inevitably expose the justices to criticism for the injection of their policy preferences but I think those are part of the reason the system works well.
4.12.2006 3:34am
As for the main point of the post, I wondering if it's demanding too much to ask for a satisfactory general theory.
4.12.2006 3:34am
logicnazi (mail) (www):
I think most of my last post was unnecessery to make my primary point. That was I think each of those points should be evaluated naively by the judge. That is we should use the common language notion of those points, hence the reason I posted a clearly non-legal/technical considerations, because I think it would be bad for justices to use a technical legal theory in this situation.

In particular any technical theory will almost certainly have weird corner cases or other flukes where you get inappropriate results. The reason we need technical, principled deciscions on the law is so people have confidence in its impartiality and have a reliable guide as to what will and won't be illegal. For the vast majority of situations and people clear meta-precedents simply aren't necessery in the same way. Therefore, I argue it is simply better to leave this up to the judgement of the justice as long as they aren't being obviously arbitrary.

Ultimately if you answer the question of when should bad law be binding in a technical legal fashion you just generate the second question. When should poor judgements about when to overturn bad law be themselves ignored/overruled? If you answer 'always' then you have just given my solution because you have told every judge they should ignore any formal precedent about this issue and simply overturn prior bad law whenever their notion of reliance isn't invoked. If you give some answer about when you should rely on bad meta-precedent the question can just be repeated at the next level.

So sorry about my mostly irrelevant post above. I just started thinking about how I evaluated the question and strayed from the relevant point to this post.
4.12.2006 3:47am
Splunge (mail):
[A] Supreme Court decision banning paper money today might have such catastrophic economic effects...

Really? And yet I think it would have just about the same practical effect as a Supreme Court decision banning the use of pronouns, and for pretty much the same reasons.
4.12.2006 4:04am
ralph.m (mail):
the "rage for paper money" was not a rage for paper money. Madison was concerned about debtors who were organizing themselves into factious groups urging the printing of money to effectively cancel their debts.
4.12.2006 4:22am
This is a simple enough matter: the Constitution is the document through which the People delegate certain of their powers, to be exercised in certain ways, to establish a limited national government. Court decisions which don't follow the Constitution are by definition unauthorized, and reliance on such decisions as precedent is the Court amending the Constitution, which is not allowed.

As for the practicalities of abandoning bad precedent, we need look no further than Brown, which revoked Plessy, and its invocation of "all deliberate speed." A bad precedent doesn't have to be corrected with reckless disregard for the consequences, but it does have to be corrected.
4.12.2006 9:12am
Daniel Chapman (mail):

1)Your theory about "expanding rights" has no basis in the Constitution. We'll always be talking about "controversial" rights if the Supreme Court is getting involved... how is this anything but the Court taking sides between two groups that disagree? What's to stop the Court from framing every decision in terms of "individual rights?" Individual right to contract? Individual right to not pay income taxes? Individual right to commit crimes? Where does this line of reasoning end?

2)I don't think there's as much "reliance" on Roe as you might think. Grandfather the decision for one year if you want. The only "reliance" I see is that some people have tried to validate their moral philosophy on the fact that "the Court says it's ok." Frankly, the issue is just as divisive (or more... I wasn't there) as it was in 1973. Again... this just looks like the Court taking sides. Maybe I'm missing something... Please explain how people are relying on this decision. Is it a "right to define ones concept of being" kind of thing?

3)Roe isn't as isolated in the law as you think, and it wouldn't matter if it was. Dred Scott was probably "isolated in the law" as well.
4.12.2006 10:14am
What I think Nagel misses in his article and what I think the example of paper money hits on is that the harms created by the precedent matter. Even if the reliance values are low, as Nagel argues, that wouldn't necessitate overruling Roe if a judge thought that the harms created by the wrong decision are not very high. O'Connor seems to suggest this when she writes, "[T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis."

This works for paper money as well. Saying that the government can issue paper money when the constitution does not has not had any serious ill effects. The benefit of overruling is outweighed by the unsettling effect it would have. So, it is an example we intuitively agree with because we don't think there is much to be gained by getting it right on its merits.

Anti-Roe advocates often argue that overturning Roe will have little affect, almost all states will keep abortion legal. This is meant to comfort pro-choicers. But if it will have little affect, then there is less reason to overturn it.
4.12.2006 11:24am
Daniel Chapman (mail):
PJ: Abortion would remain legal in most (if not all) states, but it wouldn't be unrestricted. At the very least, state legislatures would be able to reach sensible compromises.
4.12.2006 11:40am
frankcross (mail):
MR makes a good point for respecting precedent that was, naturally, overlooked. It has some humulity. So many posters seem to think that certain precedents are objectively or obviously wrong as a constitutional matter. But they are not clearly wrong, they were adopted by a Supreme Court that is as capable as are these posters. Randy Barnett's originalist approach is very different from that of others and their response seems to be simply: "I'm right and you're wrong."

The instability does not come from simply reversing Roe, it comes from reversing it, then readopting it, then reversing it, etc., as Supreme Court attitudes change. Which would be the outcome of a lack of deference to Roe.
4.12.2006 12:19pm
Kim Scarborough (mail) (www):
Say for the sake of argument the Court ruled that paper money was unconstitutional. Couldn't they just say "you have two years before this ruling is enforced", giving them time to rush an amendment through, or at least to start minting $100 coins?

Anyway, with modern money a "coin" is something different than what the founders meant. They were assuming a lump of precious metal that was in itself valuable. Our modern copper-and-zinc based coins are just as much false-based representations of value as paper money. Surely the distinction was between precious metals and notes of credit, not whether the item used for trade was made of paper or cheap metal.
4.12.2006 12:24pm
I personally thought that the South Dakota abortion law was an unwise move, as a purely political matter from the viewpoint of the best interests of its proponents, simply because the Supreme Court does not like to perceive itself as being defied and overly provocative actions could send votes swinging the other way.

But it obviously had a clear purpose. Its purpose was to make clear that out in the heartland people do not place the slightest reliance on Roe. There may be 4 or 5 people who rely on Roe -- it remains to be seen which figure is correct -- and of course people who agreed with Roe anyway would be as willing to use the "reliance" argument as any other.

But the idea that there is any significant portion of the population who, disagreeing with Roe on moral grounds or whatever, has nonetheless has come to accept it as part of the national fabric for purposes of daily life(certainly in anything like the way that most people who might theoretically prefer a gold standard nonetheless acquiesce to using paper money every day), strikes me as rhetoric unsupported by evidence. What is the evidence of this acquiesence?

The percent of women who actually have abortions is, if anything, consistently lower than the percent of women who claim to believe in them. There simply is no empirical evidence of the "acquiesence" being claimed. There's no beef behind this rhetoric.
4.12.2006 12:25pm
Daniel: My point was not about the validity of the argument but about the relationship between the premise and its conclusion. If overturning a case will have little social impact (which is the premise of that anti-Roe argument I referenced), is that a reason for overturning or a reason for not overturning? It is a reason for not overturning. Getting the law "right" becomes unimportant.
4.12.2006 12:34pm
Daniel Chapman (mail):
And my point was that even though abortion would remain LEGAL in most states (but not SD, apparently), that doesn't mean there will be "little social impact." Compromises on late term abortions, for example, would be significant. Further, simply putting the decision back in the hands of legislatures would have an enormous impact on society. Imagine if legislators actually had to BACK UP their rhetoric on abortion instead of simply taking a hard stand on one side or another knowing that the Supreme Court has all the decision making power anyway?

The premise that there would be "little social impact" is wrong.
4.12.2006 12:38pm
I often wonder if the Constitution made change too hard. If something so close to a consensus is required that the constitution is almost never changed by front-door representative methods, and then non-representative, judicial-fiat back-door methods spring into being that seem to change all too easy to the point of causing great instability whenever a change in a single justice moves the court from 5-4 to 4-5, what's the point? If we're going to have a back door with no locks at all, why not just make the front door easier to get into?

Our current approach seems to turn the basic idea of constitutionalism, of sovereignty and the right to institute fundemental change reserved to the people and by the states, on its head. Why not make it easier for the people and the states, and harder for the Court, to weigh in on change in what the Constitution is regarded as standing for?
4.12.2006 12:44pm
Daniel Chapman (mail):
For example, if someone proposed a constitutional amendment adding an Equal Protection clause that applied to the federal government, specifically incorporating all judicial interpretation of the 14th Amendment and applying it to the federal government, would it pass? Frankly, I doubt it... but Bolling v. Sharpe is an embarrassing proof of your argument, ReaderY.
4.12.2006 12:49pm
JosephSlater (mail):
It's hard to have a discussion about the general principle of when a court should reverse precedent that's "wrong" without it devolving into a discussion primarily about _Roe_. In my field of labor law alone, I think a couple of Supreme Court decisions -- MacKay Radio (allowing permanent replacements of strikers) and Beck (forbidding employers and unions from requiring full union dues in their contracts) are as "wrong" as any other S.Ct. decision in the 20th Century, at least in terms of being contrary to explicit statutory language. But these decisions, other problematic cases, and even the very odd 11th Amendment jurisprudence is all drowned out in the debate by Roe v. Wade.
4.12.2006 12:52pm
David M. Nieporent (www):
It's hard to have a discussion about the general principle of when a court should reverse precedent that's "wrong" without it devolving into a discussion primarily about _Roe_. In my field of labor law alone, I think a couple of Supreme Court decisions [...] are as "wrong" as any other S.Ct. decision in the 20th Century, at least in terms of being contrary to explicit statutory language.
This debate is primarily about Roe because it's primarily about the constitution. Statutory decisional mistakes aren't particularly important, because Congress can fix those if it wants to. But once the Supreme Court speaks on the Constitution, we're basically stuck with what they say.
4.12.2006 1:19pm
It's always amusing to find ideologues, whether right or left, baying that bad precedents should be overruled no matter what.

As of now the right has the floor, wanting old precedents overturned. But in the 1960's the positions were reversed, and the left celebrated the overturning of many precedents.

The debates over the Supreme Court so often are nothing more than rank hypocrisy.
4.12.2006 1:24pm
As for the issue of "expanding rights" discussed above, how can anyone deny that the Court changes our rights over time?

But where I would alter the "expanding rights" paradigm is my arguing that rights can also contract as well as expand. And there's no reason, for allowing one without the other.
4.12.2006 1:25pm
Daniel Chapman (mail):
I'm sorry... I wasn't around in the 60's. "Hypocrisy" is kind of a stretch when you're accusing a cross-generational abstract group with a shifting philosophy.
4.12.2006 1:27pm
Closet Libertarian:
Justifying stare decisis with reliance interest is absurd. Reliance interest in the written Constitution is greater than any one case. However, some stability is desirable even if the majority opinion changes with turnover at the Court. How to balance each justices interpretation of the original constitution against prior courts is the real question.
4.12.2006 1:57pm
JosephSlater (mail):
David M. Nieporent:

You make a good point about distinguishing constitutional from stauttory interpretation. I would say in semi-defense that the NLRA has been notoriously hard to amend in any significant way for political reasons. The last major set of amendments were in 1959, and the last major set of amendments dealing with labor-management relations, as opposed to union/member relations, was in 1947.

Also, the 11th Amendment cases are, at least in my opinion, as "wrong" as "wrong" can be, but they are clearly drowned out by Roe in any debates about precedent.
4.12.2006 2:20pm
RHD (mail):
Despite all the ink that keeps getting spilled on this topic, it's obvious that the American legal system needs a principle of stare decisis, and that stare decisis must be flexible to allow for exceptions, as Roberts and Alito said over and over again in their confirmation hearings. When and why the principle of stare decisis should be found to govern, and when not, are in reality all determined ad hoc and case-by-case. In terms of how cases are actually decided, general principles that supposedly govern those matters aren't worth the paper they are printed on. After all, even the three justices who signed on to the Casey "stare decisis" opinion have never felt particularly constrainted by its reasoning in any other case or context. But it's still true that there is some value, beyond the amusement it provides academics, in asking what value stare decisis serves.

In addition to routine reliance interests, one of the key interests served by stare decisis is that it puts a brake, albeit not a big one, on the politicization of the Court in the development of its Constitutional jurisprudence. Most of the interesting Constitutional cases don't have clear-cut textual answers, and there are normally respectable arguments on both sides. Able lawyers can always come up with reasons why even superficially clear text does not mean (or did not mean at the time of adoption) what one might think, once context, history, etc., are factored in. Stare decisis serves to rule out changes in interpretation whenever one side's political fortunes change sufficiently to move its adherents from minority to majority status on the Court; and it forces the Court to take a look (how hard a look is up to the Court) at the institutional concerns that would be sacrificed by a too ready willingness to scrap precedent because a former minority is now in the majority and has the votes to issue its ipse dixit that its reading/mode of analysis is the "correct" one.

Those commenters who assert that any reliance interest here is absurd evidently believe that they possess the One and Only Gospel of the True Constitution. How nice to be so certain. If only they could convince the large portion of the public, bar and academy that worships in a different Constitutional Church. Surely, the fact that the entire discussion has become so tiresome and sterile suggests that it's time to take a closer look at what is driving it.

If you agree that the growing politicization of the Court (and, as a result, the confirmation process) are important issues and you're still looking for a precedent that deserves to be scrapped, forget about Roe for a minute and take another look at Marbury. None of these issues would generate much heat, or interest (again, except for long suffering academics), but for the additional principle of judicial review of Congressional enactments for conformity to the Constitution. Unlike the Supremacy Clause, which fairly requires the Court to review state enactments for conformity to the federal Constitution, there is no textual basis for judicial review of acts of Congress. By assuming that power, Chief Justice Marshall long ago transformed the Court into a potent political actor. The history of how poorly the Court has used that power over the last 200 years is reason in itself to question whether the power should continue to exist.

The point is not that Congress is scrupulous in respecting Constitutional limits, or that in an ideal system there ought not to be some external constraints on Congress' refusal to stay within its enumerated powers (other than the continuing power of tehn public periodically to vote the bums out). But the costs of the current system just outweight the occasional benefits. Not only would a lot of steam go out of the stare decisis discussion, but much of the point of the endless battles over originalism vs. living Constitution vs. whatever other model of interpretation one might propose, also disappers. Judges and lawyers are generally quick to defend this judicial power at the expense of the political branches. But as long as it's around, there will never be an end to the drive to make the Court an even more intrusive presence in fundamental social and moral matters that, in a rational world, should be decided by the messier route of political and legislative compromise.

So, while the topic is ostensibly stare decisis and Roe, the elephant in the room is judicial review and Marbury.
4.12.2006 3:16pm
Andrew Hyman (mail) (www):
RHD, according to the Supremacy Clause, federal laws that are not "made in pursuance of the Constitution" are not supreme law and therefore do not bind any judges anywhere in the United States. Are you seriously suggesting that SCOTUS has no true authority to determine whether federal laws are "made in pursuance of the Constitution."

In my humble opinion, your assertion that "there is no textual basis for judicial review of acts of Congress" is very similar to Ilya Somin's assertion that "there is a strong originalist argument that the Court made a mistake in holding that Congress has the power to issue paper money." These are both straw men designed to make us all feel comfortable with the idea that SCOTUS should continue its allegedly ancient practice of blatantly violating the Constitution.
4.12.2006 3:33pm
Somin's point about the Legal Tender cases was made in a (largely negative) review of Randy Barnett's book published last year in Critical Review. I wonder if Prof. Somin would like to address that article.
4.12.2006 3:36pm
Jam (mail):
So, there are ways to alter the uS Constitution other than amendment? And it is OK?

If it is unconstitutional it must be declared as such and may the chips fall where they may. I am ready for a great tar-and-feathering of ALL who seek to shackle us with illegal government actions and laws.

With regards to the legal tender. My understanding of what the Founding Fathers meant by "paper money" is "fiat money." Money not backed by gold or silver. Like the French did during the French-Indian Wars.
4.12.2006 5:10pm
Jam (mail):
The uS Constitution is the "Supreme Law of the Land" only as to delegated authorities.

Prior decisions are not law and to decide cases on something that was decided before is a violation of the Supreme Law of the Land, in violation of the oath of office and, therfore, to rule based on a prior case is reason for impeachment. IMHO
4.12.2006 5:13pm
Brett Bellmore (mail):
We have a reliance interest in the Constitution that was actually ratified being upheld, which in the long run is far greater than any temporary reliance on mistaken rulings. This drunkard's walk the courts are taking away from the actual Constitution must eventually take us so far from it, that it will cease to be any source of legitimacy for the government.
4.12.2006 6:29pm
duglmac (mail):
Lets not lose sight of the forest through the trees.

The supreme court should not be deciding cases based on how they think it will affect society. It's not in their charter. Leave that to congress.

If, for instance, they overturned the precedent and found paper money to be unconstitutional, congress could easily act and make it constitutional. So, too, if the Supreme Court overturned Row vs. Wade, congress could easily change the constitution to make abortion constitutional.

The big difference here is that congress today would muster huge bipartisan support for the paper money change, but would not be able to muster a 2/3 majority support for the abortion change.
4.12.2006 8:47pm
Patrick (mail):
It will probably not interest most of the contributors to this thread, but Lionel Smith, a Canadian scholar, has a chapter in the Fechstrift for JW Harris which deals with when and how Judges should overrule past decisions. I don't know if it is published quite yet, I think it is imminent, from OUP.
4.13.2006 12:06am
SimonD (www):
The big difference here is that congress today would muster huge bipartisan support for the paper money change, but would not be able to muster a 2/3 majority support for the abortion change.
And, indeed, has not been able to in thirty years. That Roe continues to be so controversial, so divisive 33 years on makes a mockery of the claim that it is "settled law." I continue to think that stare decisis - being an element of common-law courts prior to the revolution - was part of the original understanding of the judicial power, and must therefore be accounted for by an orignalist theory, but as I see it, the principle difference between the common-law system and the American legal system, despite the latter's vast inheritance from the former, is the presence of a written constitution. Stare decisis serves as an anchor, a principal to ensure stability in the law; we have an alternative mechanism: the written constitution. Stare decisis must have some weight in law, but exactly how much (particularly in constitutional questions) is an unanswered question, and in no event can a decision which runs explicitly afoul of the Constitution take refuge behind stare decisis.
4.13.2006 12:36am
SimonD (www):
Incidentally, with the greatest respect, I can only presume that LogicNazi is being fascetious when he says that Roe "Lack[s] [a] corrosive effect on the law" - it is the very poster child, the textbook definition for cases that have a corrosive effect on the law. It's hard to imagine any other decision in the twentieh century which did more to undermine the rule of law and the validity of judicial review. "[T]o portray Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since."

If Congress tommorow passed, and the states unanimously ratified, an amendment making explicit that there henceforth either will or will not be a right to murder one's child, in or ex utero, I would STILL militate for Roe to be explicitly repudiated by the Court. It isn't just about the substance of the abortion debate, it's about the court's proper role and how the constitution should be interpreted. For all these reasons and several others, I strongly dissent from the idea that Roe not only is, but CAN be, anything other than a "corrosive effect on the law", regardless of what your or my normative opinion of abortion might be.
4.13.2006 12:44am