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.
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.
When the Court in Casey announced that Roe was a kind of super-precedent, it pointed to a range of ways in which people had come to rely on the right to abortion. It distinguished this reliance from the settled social expectations created by Plessy on the ground that the doctrine of "separate but equal" had rested on the factual assumption that legal separation of the races did not imply the inferiority of blacks unless (as the Plessy Court put it) "the colored race chooses to put that construction upon it." By 1954, "society's understanding of [these] facts" had changed. Thus, explained the Court, the public could see the overruling of Plessy as being based on a new understanding of human psychology rather than on a change of legal principle. No such change in factual understandings could, the Court concluded, justify the defeat of the expectations generated by Roe.
Our current situation, then, is that the decision to overrule the separate but equal doctrine is the most celebrated legal event of the past century, while the decision establishing a right to abortion--the most legally dubious and controversial opinion of the 20th century--is an untouchable super-precedent. To say the least, this deserves some reflection.
IT IS TRUE that Plessy contains the factual claims that the Court in Casey quoted. And it is also true that Brown, relying on some dubious social science, asserts the opposite understanding of the psychology of segregation. The existence of this empirical basis for the claims made by the justices in Casey, however, does not justify the Court's insistence that overruling Roe would be understood by the public as a more radical revision of legal principle than was overruling the doctrine of separate but equal.
While Plessy relied on some psychological speculation, it also stood for the broad principle that the equal protection clause was not intended "to enforce social . . . equality, or a commingling of the two races upon terms unsatisfactory to either." Similarly, while Brown relied on some psychological and educational speculations, it also stands for the broad principle that the equal protection clause does prohibit social inequality between blacks and whites. If there was any doubt about this broader meaning in 1954, it was quickly eliminated in the next few years as courts ordered the desegregation of public beaches, buses, golf courses, and bathhouses. In short, the most celebrated decision of our time did overrule an established legal principle upon which pervasive political expectations and moral understandings had been based.
In contrast, the Court could have overruled Roe without reversing any constitutional or legal principle. The Casey opinion begins by carefully laying out the essential aspects of Roe that it was declining to overrule. The first of these was that the Constitution protects the right to abortion and, therefore, "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure." Now, the claim that the Constitution protects a right to abortion is an interpretive legal principle, in kind much like the claim in Plessy that the equal protection clause does not require social equality. But the proposition that a state's interests before about the sixth month of pregnancy are not strong enough to justify prohibiting abortions or imposing substantial obstacles on abortions is not a legal principle at all. It is a moral conclusion representing a judgment about the relative importance of what appear to be two entirely incommensurate interests, the individual interest of a woman in obtaining abortions and the interest of the state in regulating or prohibiting early-term abortions.
It is an arresting question how a judge can assess whether the wide array of purposes that a woman can have in seeking an abortion are more important than a state's interest in, say, protecting potential human life or keeping a husband apprised of his wife's plan to terminate her pregnancy. (About this, the Court declared without elaboration that "the required determinations fall within judicial competence.") At any rate, the justices could have reversed Roe's moral conclusion about the relative value of these interests--or they could have decided that courts are not capable of making this kind of assessment--without reversing any legal principle. Casey, then, declined to overrule a legal principle established in the most criticized decision of our time only if the meaning of the term "legal principle" is stretched so far as to include moral conclusions about fiercely debated personal, political, medical, and spiritual questions.
Moreover, while the scope of the public's reliance on Plessy was clear and undeniable, the nature of the reliance interest in Roe is difficult to identify. The Casey Court actually toys with (but dismisses) the possibility that some women might engage in unprotected sexual activity based on the expectation that they could obtain an abortion if necessary. Reversing Roe would leave some of these women pregnant. But, again straying rather far from conventional legal issues, the Court goes on to note the improbability of people engaging in sexual behavior because of Roe v. Wade as well as the likelihood that "reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions."
The Court then considers the broader effect that the right to abortion has had on women's choices and understandings. The passage is worth examining:
[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion. . . . The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
This rather self-congratulatory paragraph appears to be saying that the Court's discovery of a right to abortion initiated the emancipation of women by altering roles and values and, more concretely, by inducing women to enter into sexual relationships as well as into jobs. Of course, these changes were underway before Roe was decided in 1973 and were surely caused by many other factors besides the Court's decision. But even assuming Roe had a major part to play, how exactly would reversing Roe undermine any of this? Is the idea that women in the workforce would suddenly feel out of place because abortion was no longer available and that they would flee back to domesticity? Or that women who had entered into marriage or affairs because of the availability of abortion would suddenly regret their relationships?
The fact of the matter is that reversing Roe would not necessarily even eliminate the availability of abortion, since different states would presumably come to different judgments about how that procedure should be regulated. Consequently, reversing Roe might have no effect, or only minor effects, on women's expectations or behavioral patterns. Even on the assumption that abortion would be widely outlawed, the main consequences for women would be prospective, changing some decisions and attitudes and imposing some burdens. But it is difficult to see how past decisions made in reliance on Roe would be affected. Certainly, allowing states to regulate abortion again would not directly dismantle a pervasive social system, as overruling the doctrine of separate but equal did.
NEITHER THE NEED TO HONOR announced principles nor the desire to protect entrenched expectations provides an explanation for giving the abortion decisions the status of super-precedents; in fact, both of these considerations suggest that Roe should have less precedential force than Plessy v. Ferguson, which (as I have said) the Court is justly celebrated for overturning. Other sections of the Casey opinion, however, point us toward a fuller, if dismaying, understanding of why some of the justices think the constitutional right to abortion should be set in cement.
Much of that opinion is concerned with, and one could even say transfixed by, the fact that over the years much "political fire" has been directed at Roe. States have passed many statutes intended to test and limit the 1973 abortion decision, the Justice Department has several times called on the Court to reverse that decision, and many political demonstrations (as well as some violence) have been directed at both the right of abortion and the Court responsible for it. At one level, this is a very odd reason for sticking with a precedent. Political fire, after all, is an indication that a significant number of people disagree with the Court's position on abortion. To an innocent mind, the fact that many people fervently think you are wrong might be a reason to suspect that perhaps you are wrong.
The Court sometimes sees this logic, or at least a happy corollary. That is, it is inclined to see agreement as a reason to think its decisions are right. Recently, for instance, the Court refused to allow Congress to make changes in the regime of police warnings to suspects required by the once heavily criticized Miranda decision. The police, you see, had eventually come to accept the required procedures, and, indeed, the warnings had become accepted as "a part of our national culture." Again, the obvious thought would be that judicial decisions that do not generate this kind of acceptance ought to have less precedential weight. But the justices in Casey give a portentous reason for why the fact of strong disagreement with Roe is a reason to refuse to overrule it.
If Roe were overturned, the country would, said the Court, pay a "terrible price." Because Roe had resolved an "intensely divisive controversy" and, indeed, had called the opposing sides in this controversy "to end their . . . division," reversing Roe would be seen by the general public as a "surrender to political pressure." In particular, citizens who had supported the right to abortion out of respect for the Court's authority and despite intense criticism of Roe would feel betrayed by a reversal and naturally believe that the Court had capitulated to political pressure. Perceived as a political institution, the Court would lose legitimacy.
More ominously, since the American people's capacity to see themselves as living under the rule of law is tied to "their understanding of the Court invested with the authority to . . . speak before all others for their constitutional ideals," undermining the Court's legitimacy would threaten American constitutionalism and, in the end, the "Nation's commitment to the rule of law." Thus intense opposition to the original abortion decision becomes a reason, not to doubt that decision, but to reaffirm it. Our very nationhood depends on it.
No wonder Specter asked if Roe were not now super-precedent. When asked about the weighty considerations discussed in Casey, nominee Alito replied blandly, "I think that the Court . . . should be insulated from public opinion. [Courts] should do what the law requires in all instances." But that is not precisely the argument made in Casey. In fact, Casey comes close to insisting on the opposite: that the Court should stay with a decision wrongly interpreting the Constitution because a reversal of that wrong decision would meet with public criticism and disapproval. Insofar as Casey rests on the relationship between judicial legitimacy and stare decisis, the Court is arguing that public opinion--in the form of attitudes about the Court--should trump law.
OF COURSE, the Casey Court does not say outright that Roe was bad law. One would hardly expect that. But the justices do acknowledge the possibility that Roe might have been in error, and they do refer to "the reservations [some justices] may have in reaffirming the central holding of Roe." And they do say that these reservations are overcome only by a reexamination of the constitutional questions involved, "combined with the force of stare decisis" (emphasis added).
More disturbingly, Casey does not exactly say that following the precedent set by Roe is important in order to convince the public that the Court is in fact abiding by legal principle. It says, to be precise, that it is important that the Court appear to be abiding by legal principle. Indeed, for all its high-toned references to the rule of law, the opinion is suffused with cynicism about the relationship between law and politics. At one point, for instance, it asserts that, because the usual reasons for overruling precedent do not apply to the original abortion decision, "the Court could not pretend to be reexamining the prior law with any justification beyond present doctrinal disposition to come out differently from the Court of 1973." Pretend? And since when is a considered judgment that a constitutional ruling was profoundly wrong as a matter of law referred to as "a present doctrinal disposition to come out differently"?
More generally, in its discussion of judicial legitimacy, the Court in Casey refers to the perception of legality rather than the reality. For instance, it asserts, "There is a limit to the amount of error that can plausibly be imputed to prior Courts." Note: not the amount of error that might properly (as a matter of law) be imputed but the amount that might be made plausible to the public. Casey is concerned with the perception of legality more than the substance. Even as it declares that law must be separate from public opinion it elevates the public's opinion of the Court above law.
Casey's rather frantic concern for the Court's legitimacy is hard to explain. The justices had no evidence about the public's knowledge of the doctrine of precedent, no evidence that people think the Court seldom overrules prior decisions, and no evidence that the public loses respect for the Court when it does reverse a prior ruling. Moreover, it is not at all self-evident that the public thinks constitutional decisions are immune from political considerations or that this sort of realism would lead people to the conclusion that the Court is an illegitimate institution. It is quite possible, in fact, that among the general public the legitimacy of the Court is based partly on the belief that the judiciary does respond to politics and thus tends to produce results with which many people agree. It is certain that multitudes of lawyers, most law professors, and virtually all political scientists believe that the Court is influenced by political considerations. Few of these professionals, however, would therefore describe the institution as illegitimate.
That the legalistic fastidiousness of Casey should be invoked in a confirmation hearing is downright weird. Even as Specter grilled Alito about the need to separate law and politics, the senator was engaged in a very public process in which politicians try to affect the direction the Court will take. Specter was doing so at a time when the line between political considerations and legal considerations has largely vanished even in the way that the justices attempt to justify their judgments. The doctrine that Roe is a super-precedent makes completely clear--as do scores of decisions that rest on precedent rather than on the Constitution itself--that the justices (and their apologists) now believe that the authority of the Court's decisions is more important than the authority of our fundamental law.
Whether the Court plays a saner role in our political system in the years ahead will depend in large measure on whether the justices can think realistically and critically about the practice of adhering to past decisions. A necessary first step is to drop the inflated conception of the Court's role inherent in the word "super-precedent."
Robert F. Nagel is a professor of law at the University of Colorado and author of The Implosion of American Federalism (Oxford).