The Specter of Superprecedents

SOMETHING TO LISTEN FOR DURING the Roberts confirmation hearings is an uncommon word, "superprecedent." Sen. Arlen Specter, chairman of the Judiciary Committee, used "superprecedent" in a July 24 op-ed in the New York Times previewing the hearings, which are scheduled to begin September 6. Specter began by noting that Sandra Day O'Connor, whom Roberts would succeed, was the decisive vote in many 5-to-4 decisions "on the cutting edge of issues confronting our society," none more important than Roe v. Wade, "the central issue."

Specter wrote that while some senators have announced their intention to ask Roberts whether he would overrule the landmark abortion case, the nominee could "answer [that question] or not as he sees fit." Specter invoked "confirmation precedents" to support the proposition that a nominee need not "spell out how he or she would rule on a specific case," but he emphasized that nothing forecloses "probing inquiries on the nominee's general views on jurisprudence," not least on "how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision." Then came the unusual word: "Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases."

Stare decisis--Latin for "let the decision stand"--is the doctrine that the Court's precedents should govern decisions in similar cases by later Courts. The kind of stare decisis Specter has in mind is constitutional--that in which the decision at issue is a construal of the Constitution. Precisely because of the difficulty of correcting a wrong constitutional ruling through the amendment process--Congress can far more easily enact a new law to respond to an erroneous statutory decision--the Supreme Court has on numerous occasions overruled a constitutional precedent. Stare decisis doesn't ordinarily concern a Court unless it decides that the previous decision, which one party or the other contends should govern the new question, was indeed wrong.

Specter thinks Roberts should discuss factors to be weighed in deciding whether to let a prior decision stand. Such factors (notably the need for stability and predictability in the law) are not legislated or found in the Constitution but are the justices' manufacture and thus reflect (presumably) how they think about the judicial office. For that reason, if anything is worth asking a prospective justice about, how the person might evaluate the force of a precedent having concluded it was wrong ought to be high on the list. But what would it mean to ask about a superprecedent? What, pray tell, is that?

As described by Specter, it's a decision like Roe that has been reaffirmed in later cases. Plainly, Roe itself is to be understood here as the superest of all for those in the business of superprecedentialism (neologisms being the fashion here). Specter attributed the term to unnamed legal scholars, a veritable invitation to the law bloggers to figure out who those people might be. Within hours, superprecedent and its equivalents having been Googled and Westlawed and Nexised many times over, the results yielded up by the blogosphere were, well, interesting.

"Superprecedent," it turns out, has been mentioned in law journals, but almost always to mean a case whose holding is so clear and accepted that later cases governed by it settle rather than go to trial. As a result, such a case is undercited (so to speak) in judicial opinions. This, it turns out, is of concern to academics seeking to infer from the frequency of citations the kind of influence a given case might have. A superprecedent, by its very influence, leaves no markers by which that influence might be measured. This is obviously not the sort of superprecedent Specter had in mind. I called his office, which referred me to an article by William Eskridge and John Ferejohn in the Duke Law Journal. But that piece concerns "superstatutes," a different topic.

Maybe Specter heard some legal scholars speak of superprecedent in the cryptic way he described it in his Times op-ed. Or maybe he heard some of his Democratic colleagues on the committee--the Democrats being the party of Roe's all-out defense--speak of superprecedents and mumble something about legal scholars who "attach special significance" to them. Plainly, the sense in which Specter's unnamed legal scholars understand superprecedents is one favorable to the perpetuation of the Roe precedent.