The Magazine

Bowing to Precedent

A decent respect for the Constitution should cause the Supreme Court to reconsider some past decisions.

Apr 17, 2006, Vol. 11, No. 29 • By ROBERT F. NAGEL
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

AT THE OUTSET OF Samuel Alito's confirmation hearings, Judiciary Committee Chairman Arlen Specter asked a series of questions about the rather arcane subject of stare decisis, which is the judicial practice of following prior decisions. Eventually the questions took an odd turn, with Specter asking Alito whether he agreed that the right to abortion had special immunity from reconsideration, that is, whether it is "super-precedent." Alito parried this by declining to "get into categorizing precedents as super-precedents or super-duper precedents." That sort of terminology, Alito said, reminded him "of the size of the laundry detergent in the supermarket." This exchange, which must have puzzled most Americans, was highly significant. Indeed, it touches on ideas that are basic to understanding why the Court has become such a dangerous institution and whether the appointments of Justice Alito and Chief Justice Roberts are likely to change things.

Although the practice of sticking with precedent is often associated in popular understanding with stodgy legalism, it was a shrewd subject for Specter to choose. Alito, like any good lawyer, makes his living by working from the logic of prior cases. Moreover, a reluctance to disrespect or to unsettle prior understandings is especially natural for someone with conservative instincts. Thus, while it is doubtful that Alito thinks the Court's famous 1973 abortion decision, Roe v. Wade, was solidly based in the Constitution, it is certainly possible that he might be too devoted to precedent to overrule it. Other Republican appointees--including Justices O'Connor, Kennedy, and Souter--refused in Planned Parenthood v. Casey to overrule Roe largely because they think it is entitled to a special degree of respect as precedent. If the original abortion decision is super-precedent and the Court in Casey emphatically affirmed that extraordinary status, then Casey must be super-duper precedent.

That Alito should have a bit of fun with this logic is encouraging, but it does not tell us how willing he would be to reconsider constitutional precedents. This is crucial, because 35 years of Republican domination of the Court has not resulted in the overruling of a single revolutionary Warren Court decision--not Miranda v. Arizona, which imposed a new interrogation procedure on police departments across the country, not Griswold v. Connecticut, which began the constitutionalization of sexual freedom, not New York Times v. Sullivan, which turned the regulation of defamatory speech over to the courts, and not Brandenburg v. Ohio, which even in this age of terrorism continues to protect most advocacy of violence.

The Roberts Court now faces not only Warren Court precedents but also, even putting the abortion issue aside, dozens of far-reaching precedents established during the Burger and Rehnquist eras. Those include cases prohibiting virtually all gender distinctions in the law, protecting homosexual sodomy, severely limiting public religious observances, and preventing states from regulating profanity.

Respect for precedent means not only that the justices should follow the specific outcomes of prior cases but also that they must follow their logic. The logic of legions of cases demands that judges second-guess legislative and executive decisions on the most sensitive moral and political issues and that judges decide for themselves on the appropriate means for achieving preferred policies. The simple fact is that constitutional law as set out in the cases now requires judges to legislate from the bench. Nominees to the Court can repeat endlessly that judges should interpret, not make, law. But unless they are willing, once on the Court, to rethink the logic of prior cases, they will have to make law.

This displacement of political decision-making has had deeply harmful consequences for our society. It has led Americans to lose political self-confidence and to depend pathetically on the judiciary to resolve the most pressing public issues. At the same time, since judicial resolutions tend to be couched in the language of high principle, the Court's role has reduced the opportunity for political compromise and thus has inflamed passions and distrust.

So Specter's questions about stare decisis were not tangential or technical. They go to the heart of the question of whether even sustained, apparently effective efforts to rein in the Supreme Court through the appointment process can be more than marginally effective. It is important, therefore, to consider carefully the justifications for the ideas of precedent and (God help us) super-precedent.