What is the value and meaning of “precedent” for the Supreme Court? This is a question that comes up at least once a term, and each Justice has his/her hir own view.
In what is generally thought to be Justice Souter’s Casey opinion, three Justices waxed poetic about the importance of constitutional precedent and relied on it to reaffirm Roe. By contrast, Justice Thomas appears to completely reject the bindingness of constitutional precedent. The remaining Justices seem to fall somewhere in the middle.
From a strict doctrinal and legal position, I lean towards Thomas. As Akhil Amar has said, we should not preference doctrine over document, Court over Constitution. If a Justice believes that a previous Court got a constitutional question wrong, he/she heesh should not be bound by it. A bad legal argument is not buttressed merely by its adoption by a previous Court.
From an institutional standpoint, however, Stare Decisis is an extraordinarily important principle. The Court has little institutional strength: it cannot enforce its own decisions, and it is always subject to back-seat punditry. The only thing it has going for it is that The People seem to accept the Court’s decisions as to the meaning of the Constitution. The People trust the nine people in robes, not individually, but institutionally. Overturning precedent, particularly if it becomes regular practice, stands to undermine this trust. When Justice Thomas votes to undo the entire body of Establishment Clause doctrine, he is really saying “Don’t trust the judges of the past; trust me.” But Thomas is just a man; and it is not the man we trust, it is the Court. If the Court regularly junks precedent, the rest of us may wonder why it is that we ought to follow this Court rather than a previous one, or the next one.
I am not staking a position here about what the Court should do in any given situation. My point is only that we face an odd conundrum. Stare decisis does not protect the Constitution; it protects the Court. But if we believe that the Court is the branch of government best situated to protect the Constitution, perhaps we need some measure of Stare Decisis in order to allow it to function.
Posted by Hillel Levin on April 25, 2005 at 11:08 AM
Comments
Political scientists appear to have empirically demonstrated the obvious: that whatever the Justices say about stare decisis, in reality past cases are relied upon only when the Justice would have reached the decision supported by the precedent for other reasons. See Spaeth & Segal, Majority Rule or Minority Will (1999); Segal & Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002).
This is quite different from the normative question whether precedent should carry more weight than it does, but raises another interesting normative inquiry: whether the Court should pretend that precedent matters when in reality it does not, so that the institutional prestige of the Court will be elevated.
Posted by: Michael Dimino | Apr 26, 2005 2:08:53 AM
Justice Rhenquist said it best in Casey:
“Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depar[t] from a proper understanding” of the Constitution….And surely there is no requirement, in considering whether to depart from stare decisis in a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutional decision could survive [forever, based simply on the fact that it was no more outlandish later than it was when originally rendered.]”
This cuts both ways: While it argues that Roe could be reconsidered, and also opens the door for Lawrence (reconsidering Bowers) and Roper (reconsidering Stanford). The alternative is to set arguably incorrect constitutional decisions in stone, absent a constitutional amendment.
Posted by: MJ | Apr 25, 2005 12:28:53 PM