Thursday, September 15, 2005

Roberts and Stare Decisis

A couple of weeks ago, I came across this article:
I cannot seem to link with blogger correctly lately, so I copied the URL. Anyway, it concerns the Supreme Court, and the notion that there are certain Superprecedents - ie. decisions made by prior Courts that should be beyond the ability of the current or future courts to reverse. It talks about another scholarly article, the contents of which are interesting given John Roberts answers yesterday to certain questions regarding Roe V. Wade. For those who don't know, Roberts basically said that Roe is established precedent, and that established precedents are to be respected because overturning them willy/nilly would send a jolt through the system. Here is a passage from an article on his testimony:

"...from committee chairman Arlen Specter. "In your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: Roe is the settled law of the land," Specter said to Roberts. "Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?"

"Well, beyond that, it's settled as a precedent of the Court, entitled to respect under principles of stare decisis," Roberts answered, picking the last part of Specter's question. "And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the Court, yes."

Now, this is from the Weekly Standard article, which discusses the Casey decision, a decision that upheld Roe:

Moreover, the article provides a devastating analysis of the famous joint opinion in Casey. Written by Justices O'Connor, Anthony Kennedy, and David Souter, the opinion suggested that maybe even all three would have voted against the holding in Roe, had they been on the Court in 1973. Yet they were unwilling now to overrule Roe. Why? Stare decisis. In particular, the joint opinion contended that failure to follow precedent would undermine the Court's legitimacy and weaken the Court's ability to command public adherence to its decisions.

As Maltz pointed out, this analysis "reverses the accepted view" that constitutional decisions should have less protection under stare decisis because they are less amenable to correction by Congress than statutory decisions. "In essence," Maltz observed, "the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position but also have that position protected from later judicial action by a kind of super-stare decisis."

So, in other words, the Court's legitimacy is undermined in the event that it reverses an opinion that is completely asinine, but the asininity of the initial opinion doesn't hurt the Court a bit. Reversing a bad decision sends a "jolt" through the system, which apparently is to be avoided (though Roberts did not say that a jolt is never appropriate), but making a bad decision never does.

Abstracting away from the underlying issue, pro-choicers can argue the justness of the legality of abortion, but I think they should agree that the justness of the process of making it legal throughout the land (ie. Roe) is extremely suspect. We have certain rights that are inalienable, and they are spelled out rather clearly; the rest of what people like to claim are our rights are very much alienable. The emanating penumbras of the Constitution (cited by Blackmun in the Roe decision) are clearly bunk - Constitutions do not emanate penumbras. Certain issues are to be left to the democratic legislative process, rather than the autocratic (when abused as it has been) judicial process.

That thinking would suggest that no prior Court decision deserves any respect outside of that deserved by its accuracy. I think it is nevertheless appropriate, although one could argue that the truly more conservative position would require showing sensitivity to the potential consequences of such a jolt. For example, if overturning an interpretation of a given law would lead to civil unrest, avoiding such unrest would obviously be a goal you'd want considered. But the question is who, under our system of government, should be sensitive to such concerns? Overturning Roe would merely turn the matter over to the states, whose legislatures would be charged with deciding on whether to keep the status quo or further regulate abortion. It is not the Court's role to consider the potential costs of a "jolt" to the system; that role properly lies with our elected representatives.


Blogger pbryon said...

My memory might be a little fuzzy, but wasn't the impact on the country--or "a jolt to the system"--cited as part of the reason for the decision after the 2000 election?

I don't think there was any stare decisis involved, but I'm no law scholar.

If the decision was indeed based on the impact to the country, as opposed to something else, was that a good decision?

8:24 AM  
Blogger Incredible Dirigible said...

What Exactly is a "stare decisis"?

8:48 AM  
Blogger Hatcher said...

I suppose I should have defined stare decisis. Sorry. I think it is basically the notion that a prior decision of the court should have some standing in subsequent decisions, even if the later court disagrees with the initial decision. The Weekly Standard article talks about it at length.

I don't know anything about the SC decision in the 2000 election - I was too busy celebrating to read it. Anyway, if I recall, there were 2 things they decided on, and in one of those two, the vote was 7-2; I don't know if that particular vote in and of itself would have sealed the deal. In any event, the media recounts mostly indicate that the outcome wouldn't have changed.

9:03 AM  
Anonymous Jim O said...

Leaving it to the states would be a windfall for moving companies, as people jump from state to state in pursuit of "their kind of people".

If we are going to have a strict interpretation of the constitution, can we revoke the executive orders based on the Gulf of Tonkin resolution that says that Presidents can wage war without Congress declaring it?

Cause I am sick to death of that sucker...

9:52 AM  
Blogger Professor Vic said...

First of all, regarding the 2000 election, Hatch only mentions half of the results of the media studies that he likes to often refer to. It is entirely true that had the state recounted votes in the three Miami area counties that Gore wanted recounted, he would not have gained enough votes to win. The same studies, however, showed that if the entire state had been recounted, as the Bush team wanted (if any recount at all was to be done) then Gore would have won. Of course, with no recount, Bush wins the election.

Stare decisis literally means, "let the old decision stand." Essentially it means that the Supreme Court is extremely reluctant to overturn past Supreme Court decisions. Of course, the Supreme Court frequently overturns lower court decisions. There is no such reluctance or respect for precedence there.

Of course, in the case of Brown v. Board of Education, the Supreme Court did overturn its previous decision in Plesey v. Ferguson where it originally held that separate but equal was constitutionally acceptable. In that case, the intervening 60 years clearly showed that separate but equal led in reality to separate but unequal.

Now as a good economist, Hatch knows that transition costs can be substantial in many things. Therefore, stare decisis plays an important role in allowing people to know what to expect in the future and properly plan for that.

Finally, while Hatch does say that Roe v. Wade should be overturned so that state legislatures can have a crack at the issue rather than the courts, I would also note that state legislatures already have the opportunity to overturn Roe v. Wade by Consitutional Amendment. The fact that no such amendment has yet to be to be sent to state legislatures says something important as well. I fully understand that the original court decision sets a pretty high bar for opponents of the decision, but it is certainly not the case that the court has an absolute veto over decisions of Congress.

11:01 AM  
Blogger Hatcher said...

Funny you should mention the media recounts. This is from an article on NRO critical of claims Krugman made in a recent column (and probably 20 before that, given that he is a colossal bore):

Even taking account of the critical importance of the word “full,” it remains a lie to say that “Two different news media consortiums ... both found that a full manual recount would have given the election to Mr. Gore.” One of the two consortiums — one led by the Miami Herald and which included USA Today — found no such thing.

This consortium recounted the votes under four standards, ranging from lenient to strict. According to USA Today on April 3, 2002, “By three of the standards, Bush holds the lead. The fourth standard gives Gore a razor-thin win.”

What does Krugman say about that? More lies. Krugman wrote on Monday, “Two out of three hypothetical statewide counts would have given the election to Mr. Gore.” Reality: There were not three counts, there were four. And three out of four went for Bush, not Gore.

Those four counts, however, were not the “full” recounts that Krugman thinks “should have been.” Nevertheless, he lied about them. And even this consortium’s “full” counts — those that dealt with “overvotes” in addition to “undervotes” — don’t support Krugman’s claims. According to USA Today on May 10, 2001, again there were four standards (not three). The winner was “Bush, under the 2 most widely used standards; Gore, under the 2 least used.”

So “full” recount or not, it was an outright lie for Krugman to claim that “both” consortiums named Gore the winner. But what about that second consortium, the one that included the New York Times?

According to the Times itself on November 12, 2001, the most that can be said is that “Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots ... The findings indicate that Mr. Gore might have eked out a victory ... ”

So with all that, let’s see what remains of Krugman’s lie. Under the recount process ordered by the Florida Supreme Court, both consortiums agree that Bush would have won. Under the “full” recount process that Krugman thinks “should have been,” one consortium gives the election to Bush under the more widely used standards, and the other consortium only finds that Gore “might” have “eked out” a victory.

Here is the link:

11:15 AM  
Blogger Hatcher said...

Vic writes: Finally, while Hatch does say that Roe v. Wade should be overturned so that state legislatures can have a crack at the issue rather than the courts, I would also note that state legislatures already have the opportunity to overturn Roe v. Wade by Consitutional Amendment. The fact that no such amendment has yet to be to be sent to state legislatures says something important as well. I fully understand that the original court decision sets a pretty high bar for opponents of the decision, but it is certainly not the case that the court has an absolute veto over decisions of Congress.

I think the issue is why such a high bar is used for a democratic process to change the status quo, whereas five knuckleheads can decide to do it all year long. The high bar should apply to the Amendment process; all I am saying is that the SC shouldn't be a vehicle to circumvent that high bar.

And I do understand the transition cost issue - hell, I was the one who brought it up! My point was that such considerations are proper for the legislature, but improper for the Court.

11:20 AM  
Anonymous Anonymous said...


I mostly agree with your analysis of Roe. The constitutional justification seems shaky to me. As discussed previously, its reversal would be a boon for the Democrats, although bad for some poor women in, say , Mississippi.

However, to supplement ProfessorVic's sound argument regarding 2000: Bush only wins if an inconsistent standard is applied statewide. If you say " every vote must meet the strict standard set by the instructions/ state law", then any ballot on which the chad had not been removed ( as the instructions mandated) is disqualified. But so are the illegally obtained Republican absentee ballots in Volusia and Seminole Counties, as are the military ballots that weren't postmarked correctly. After these subtractions, Gore has more votes.

If instead one decides not to disenfranchise anyone whose vote was clear, then the above are added back, but so are the 20,000 voters in Duval County who were told ( by the all-GOP Elections Board) to vote on every page , although the presidential candidates were then split onto two. The first page included Gore, Bush , Nader , and Buchanan , so their preference among the main challengers was clear. When these are added in, Gore wins , by the standards of this election, comfortably ( 10,000 + votes).

Only inconsistency of the form

1) " The Duval voters should've recognized the no-names on the second page as minor party presidential candidates",
2) "How could one expect people in Volusia County to know how to fill out an application for an absentee ballot?"
3) " How could members of the United States military be expected to vote on time? "

allows a Bush victory.


2:09 PM  
Anonymous Anonymous said...

Abortion is the most devisive issue in theis country today. The last lime this country faced an issue this devisive was slavery.

The reason that these two issues are so devisive is that there is no compromise. A person can't be, "personally against slavery, but support someone's right to own a slave" and call himself an abolotionist. just like someone can credibly say, they are, "for a woman's right to choose, but personally against abortion." If you believe that life begins at conception, you have be pro life. If you believe in a woman's reproductive right, you have to be pro choice. Compromise is impossible on this issue.

Slavery didn't end because the Supreme court said that it was unconstitutional to own a person. Elected officials, subject to the cruelties of the ballot box, passed laws making it illegal. I am sure a lot of people back then were mighty upset when Lincoln passed the Emancipation Proclamation. But, since it was passed by elected officials, they could let their displeasure be known on election day.

When the court ruled on Roe, it took the abortion issue out of the democratic process. The pro life and pro choice movements now must put all their energies into the Supreme Court picks, instead of on supporting canidates for elected office that hold their views. I can think of nothing more undemocratic than that.

When the court ruled on Roe, it thought it settled the abortion issue once and for all. Instead, Roe politicized the one branch of our democratic system that should be apolotical. That is why Roe is such a crappy decision, stare decisis or not.

4:40 AM  
Blogger Incredible Dirigible said...

Excellent last paragraph, Anonymous. I am pro-life, but the one thing on which I agree with some pro-choicers is the idea that "abortion doesn't belong in politics". I agree with that statement, altho probably not for the same reason as the pro-choicers. If abortion was not a political issue--I guess specifically, if there were more pro-life Democrats, since there are already plenty of pro-choice Republicans, the political process might be a lot more interesting.

7:42 AM  
Anonymous Anonymous said...

I suppose a "super precedent" from the Supreme Court is like an "ex cathedra" statement from the Pope. Oh wait a minute, did I just violate the separation of church and state?

Stare decisis in law or politics is roughly the equivalent of activation energy in chemistry -- but with more media coverage.

SuperPrecedent is an absurd concept. Why don't you take away instant replay review in football while you're at it...

If the abortion issue is the modern day slavery issue, from a political standpoint, then it's my guess that we have a heckuva lot of Thomas Jeffersons out there. Talkin the talk but not walkin the walk!

Requesting an article on why Arlen SPecter can press Roberts on stuff like this to begin with...

10:45 AM  

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