[eDebate] Courts?

[Shawn Powers]

First, if your are not watching Studio 60 right now (west coast  
time), you are missing the best show on television.

Second, check out this guy. Money quote: "Power, not reason, is the  
new currency of this court’s decision making,”



The New York Times
June 21, 2007
Supreme Court Memo
Precedents Begin to Fall for Roberts Court
By LINDA GREENHOUSE

WASHINGTON, June 20 — No Supreme Court nominee could be confirmed  
these days without paying homage to the judicial doctrine of “stare  
decisis,” Latin for “to stand by things decided.” Yet experienced  
listeners have learned to take these professions of devotion to  
precedent “cum grano salis,” Latin for “with a grain of salt.”

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito  
Jr. assured their Senate questioners at their confirmation hearings  
that they, too, respected precedent. So why were they on the majority  
side of a 5-to-4 decision last week declaring that a 45-year-old  
doctrine excusing people whose “unique circumstances” prevented them  
from meeting court filing deadlines was now “illegitimate”?

It was the second time the Roberts court had overturned a precedent,  
and the first in a decision with a divided vote. It surely will not  
be the last.

The fact is that the court regularly revisits and reconsiders its  
precedents, as Chief Justice William H. Rehnquist, the current chief  
justice’s former boss and mentor, once observed succinctly. “Stare  
decisis is not an inexorable command,” he said in a 1991 opinion that  
included, in a page and a half of small type, a list of 33 precedents  
that the court had overturned in the previous 20 years.

So the question is not whether the Roberts court will overturn more  
precedents, but how often, by what standard and in what terms. As to  
which precedents will fall next, there are several plausible  
candidates as the court enters the final days of its term, including  
the 2003 decision that upheld advertising restrictions in the McCain- 
Feingold campaign finance law; a 1968 decision that let taxpayers go  
to federal court to challenge government policies as violating the  
separation of church and state; and an antitrust price-fixing case  
from 1911. (In an 8-to-0 decision last term, the court overturned a  
pair of antitrust precedents from the 1940s that were noticeably at  
odds with modern antitrust analysis.)

Sometimes the court overrules cases without actually saying so. Some  
argue that this is what happened in April, when a 5-to-4 majority  
upheld the federal Partial-Birth Abortion Ban Act without making much  
effort to reconcile that ruling with a decision in 2000 that found a  
nearly identical Nebraska law unconstitutional.

As a technical matter, the new decision, Gonzales v. Carhart, left  
the earlier ruling still on the books, doing its overruling “by  
stealth, without having the grace to admit that is what they were  
doing,” in the words of Ronald Dworkin, the legal philosopher, who  
wrote a highly critical appraisal of the new decision in The New York  
Review of Books last month. “Justices Roberts and Alito had both  
declared their intention to respect precedent in their confirmation  
hearings, and no doubt they were reluctant to admit so soon how  
little those declarations were worth,” Professor Dworkin said from  
London in an e-mail message.

Abortion, of course, is a special case. The debate over whether the  
court should or could overturn Roe v. Wade has been going on so long  
and with such intensity that it tends to pre-empt any discussion of  
the subtleties of stare decisis.

Senator Arlen Specter, the Pennsylvania Republican and abortion- 
rights supporter who at the time was chairman of the Senate Judiciary  
Committee, pressed Chief Justice Roberts at his confirmation hearing  
to agree with him that Roe v. Wade was not just a precedent, but a  
“super-duper precedent.”

Mr. Specter’s point was that because the court in 1992 had considered  
whether to overturn Roe but reaffirmed it instead, the 1973 precedent  
had acquired an inviolate status. His implication was that if Roe was  
just an ordinary precedent, it was as vulnerable as any other with  
which a new majority became disenchanted.

The nominee obviously knew exactly what Mr. Specter was driving at,  
but he gave away nothing. He acknowledged the historical accuracy of  
the senator’s chronology, but would not follow him to the land of  
“super-duper” precedents.

When the court explicitly overturns precedent, it tends to offer a  
checklist of justifications: the precedent has eroded over time  
through disuse or disregard (this was the majority’s stated reason  
for discarding the “unique circumstances” precedents in last week’s  
decision, Bowles v. Russell), or it has been a source of confusion in  
the law, or experience has proven it “unworkable.”

But the real reason is usually that a changing court in changing  
times has come to see the question in a new light. In Bowers v.  
Hardwick in 1986, the Supreme Court dismissed as “facetious” the  
notion that the Constitution offered protection for gay rights.  
Overturning that decision 17 years later, Justice Anthony M. Kennedy  
declared for the majority in Lawrence v. Texas: “Bowers was not  
correct when it was decided, and it is not correct today.”

Still, the court will strive to provide an explanation, if only to  
avoid the kind of accusation that Justice Thurgood Marshall leveled  
at the majority when, taking advantage of two retirements, the court  
reversed course and by a vote of 5 to 4 made “victim impact”  
testimony admissible in death penalty hearings.

“Power, not reason, is the new currency of this court’s decision  
making,” Justice Marshall declared on the final day of the court’s  
1990 term. Two hours later, he announced his own retirement, his  
words still hanging in the air.




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