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Progressivism's Alamo

Why stare decisis has become so important to the liberal project.

11:00 PM, Jan 17, 2006 • By JOHN HINDERAKER
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THE HEARINGS on John Roberts's and Sam Alito's nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited. This exchange between Judge Alito and Senator Arlen Specter, near the beginning of Alito's testimony, was one of many similar colloquies:

SPECTER: In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental."

Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.

How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an [in]exorable command, but it is a general presumption that courts are going to follow prior precedents.

ALITO SUMMED UP the concept of stare decisis, or fidelity to precedent, very well. Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it's also liberals who want nominees to agree that the Constitution is a "living document." Just moments after asking Judge Alito about his commitment to stare decisis, Sen. Specter continued as follows:

SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, "The traditions from which liberty developed, that tradition is a living thing."

Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?

ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is--it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out--some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.

IF SPECTER NOTICED any conflict between fidelity to precedent and the Constitution as a "living thing," it was not apparent. And Judge Alito, of course, did not point it out. But a serious question does lurk here: How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?

Part of the answer, of course, is that the left's commitment to stare decisis is selective. Many of the Supreme Court's iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence's violation of that principle.

It would be easy to ridicule liberalism's inconsistent attachment to stare decisis as opportunistic. Nor is it hard to find a straightforward political motive. In a narrow partisan sense, it makes sense for liberals to emphasize attachment to precedent when confirming conservative nominees, since the best they can expect from such nominees is a holding action. One day, when a Democratic president is appointing liberal justices, we'll no doubt see more emphasis on the "living Constitution."

Still, something deeper may be involved as well. When liberals talk about a "living Constitution," what they really mean is a leftward-marching Constitution. Liberals--especially those of an age to be senators--have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: "conservative" precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

Over the last 25 years, however, the ground has shifted. History stopped moving inexorably to the left and began to reverse course. The conservative movement achieved electoral success under Ronald Reagan in the 1980s. It took a while longer for the conservative trend to reach the judiciary, but it's no coincidence that a number of conservative federal judges, including John Roberts and Sam Alito, got their start in Reagan's White House or Justice Department. Now, 20 later, they are eligible for elevation to the Supreme Court.

So the left's natural preference for a "living Constitution" has turned into a two-edged sword. Liberals can no longer assume that constitutional change will move in only one direction. Hence their newfound reverence for precedent. That reverence, while certainly selective, is not entirely insincere, and is not only about abortion. If we draw back from the buffoonery the Senate Democrats sometimes exhibited last week, we can see a more poignant scene: an old guard trying, with more resignation than hope, to hold on to its last redoubt.

John Hinderaker is a contributor to the blog Power Line and a contributing writer to The Daily Standard.