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
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THERE ARE SOME CASES that as a practical matter are not subject to reconsideration. As Specter has pointed out in various confirmation hearings through the years, Marbury v. Madison, the iconic 1803 case that established the power of courts not to enforce statutes that they consider to be unconstitutional, is not going to be overruled, nor is the Supreme Court going to consider overruling it. The same is true for the famous school desegregation decision, Brown v. Board of Education. Such precedents are beyond reconsideration, not because they are intellectually unassailable, but because for a variety of reasons they are so widely accepted by the public and the legal profession that it would not occur to any serious lawyer to challenge them.

Used in this way, the idea of a "super-precedent" is superfluous. A judicial decision is beyond direct challenge when it would not occur to anyone to attempt such a challenge. Most of the specific cases that Specter asked Alito about--for example, the decision establishing a constitutional right of minors to contraceptives--are not super-precedents in this sense. And the abortion decisions, which were Specter's main concern, are bitterly contested, as is evident from the enactment of a federal partial-birth abortion ban and the recent South Dakota law prohibiting most abortions. In defending such laws, very serious lawyers have mounted, and will continue to mount, challenges to the Court's abortion precedents.

Leaving aside the handful of unchallengeable decisions, various reasons have been offered for deferring to a constitutional decision. One mentioned by Specter is that people order their affairs in reliance on judicial decisions. There is, obviously, a cost in disturbing settled expectations. However, it is only necessary to notice another of the senator's concerns to see that these costs cannot by themselves always be a decisive factor. In fact, just prior to broaching the notion of a super-precedent, Specter asked whether Alito agreed that the Constitution embodies "the concept of a living thing" and that it "represents the values of a changing society." By now it should go without saying that in attempting to keep the Constitution up-to-date, the justices have frequently shattered the established expectations of millions of Americans.

In fact, ideas that no one had ever previously thought to advance--that the Constitution protects a right to abortion, for instance--have over and over again been suddenly handed down by the Supreme Court. These sweeping changes sometimes upset laws passed in every state, and they often undermine deeply entrenched moral norms and behaviors. (Consider, as just one possibility, the impact on social practices and widely shared understandings if the Court were to accept the invitation to keep the Constitution changing with the times by declaring heterosexual marriage laws unconstitutional.) A Court that has repeatedly set about transforming society cannot be dedicated to predictability as an overriding value.

It might be objected that it is somehow different for the Court to unsettle expectations that it had no role in creating than for it to unsettle expectations created by its own precedents. However, in important and highly celebrated instances, the Court has swept aside practices and understandings that had been validated by the Court's own prior decisions. Go back, for example, to 1896 when in the notorious case of Plessy v. Ferguson the Supreme Court determined that racially segregated public facilities did not violate the requirement of equal protection of the laws as long as the facilities were physically equal. In reliance on this decision, states across the South extended Jim Crow until public services ranging from public schools to drinking fountains were legally segregated.

This apartheid, as everyone knows, remained legally entrenched until 1954, when the Supreme Court in Brown held that racially segregated schools could not be equal. Brown, now an acknowledged illustration of an unchallengeable precedent, began the destruction of a way of life that the Court itself had helped to put in place. The cruelty and prejudice inherent in that way of life should not obscure what decades of bitter, sometimes violent resistance to desegregation amply demonstrated--that the Court's long campaign against segregation was an assault on deeply held expectations and long established patterns of behavior. Obviously, some things are more important than public reliance on judicial decisions.