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2007 Section 8: Judicial Modesty Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VIII. JUDICIAL MODESTY

In This Section

"Adam Cohen on 'Conservative Judicial Activism"' p. 457 Ilya Somin

"Bowing to Precedent" p. 459 Robert F. Nagel

"Roberts, Alito and the Rule of Law" p. 462 Geoffrey R. Stone

"In Praise of Judicial Modesty" p. 464 Stuart Taylor, Jr.

"Last Term's Winner at the Supreme Court: Judicial Activism" p. 467 Adam Cohen

"Confirmation Report" p. 469 DahliaLithwick

"Originalism, Stare Decisis and the Promotion of Judicial Restraint" p. 471 Thomas W. Merrill

"Narrow Victories Move Roberts Court to Right: Decisions Ignore Precedent, Liberal Justices Contend" p. 474 Charles Lane

"The Intrinsically Corrupting Influence of Precedent" p. 477 Michael Stokes Paulsen

"Precedents Begin Falling for Roberts Court" p. 479 Linda Greenhouse

"Process Makes Perfect" p. 481 Roger Citron

"Split Decision" p. 484 Cass R. Sunstein

"So, Do You Believe in Superprecedent?" p. 487 Jeffrey Rosen

"Supreme Confusion" p. 490 Charles Fried

455 "Supreme Humility" p. 492 Michael W. McConnell

"The Assault on 'Faux Judicial Restraint"' p. 495 Lyle Denniston

"The Roberts Court and the Role of Precedent" p. 497 Nina Totenberg

Excerpt from "The Power of Precedent" p. 500 Michael Gerhardt

456 "Adam Cohen on 'Conservative Judicial Activism'

The Volokh Conspiracy July 9, 2007 Ilya Somin

[Excerpt: Some citations and portions omitted.]

[Adam] Cohen's argument equates FEC, Stenberg v. Carhart, Grutter v. conservative criticism of "judicial activism" Bollinger) mentioned in Cohen's post, all of with criticism of striking down laws enacted which were decided within the last few by elected officials. That may be Cohen's years by narrow 5-4 majorities. Such view, but it is not shared by the vast precedents have failed to gain general majority of conservative jurists and legal acceptance in the legal community (as their scholars. For decades, legal conservatives narrow 5-4 margins suggest), and are too have criticized the Court for failing to strike recent to have engendered much in the way down what they see as unconstitutional of reliance by the general public. The degree laws, particularly in the areas of federalism, to which the Court should defer to its own property rights and (more recently) free flawed precedents is controversial among speech. Most conservative (and even more conservatives (as it also is among liberals so libertarian) jurists would agree that and libertarians). There is no general failure to strike down unconstitutional laws conservative consensus in favor of following is no less a departure from the proper wrong precedents, and indeed most right of judicial role than judicial overruling of laws center legal scholars tend to the view that that the Constitution perm-its. A few judicial flawed precedents should be overruled, or at conservatives (such as Robert Bork and least severely constricted. The same points University of Texas law profiessor] Lino apply to flawed decisions by federal Graglia) have called for the virtual abolition agencies. It is also worth noting that the of judicial review; so have a few liberals, Court did not in fact "overturn" the such as Harvard professor Mark Tushnet, precedents Cohen discusses, but merely and Stanford's Larry Kramer. But such limited the scope of their application. views are very much in the minority among Perhaps Cohen means to say that they have conservative jurists and legal scholars- been so severely limited as to virtually almost as much so as among liberals. overturn them. If so, he needs to provide an argument justifying this far from obvious Cohen also implies that conservatives conclusion instead of a bald and misleading contradict themselves by supporting assertion. "overturning" of the Court's precedents and invalidation of decisions by federal Cohen also contradicts himself on these agencies. Few if any conservative jurists issues. If judicial conservatives are supposed believe that the Court's precedents are to applaud judicial restraint in overruling somehow sacrosanct, especially not if they laws enacted by legislatures, why shouldn't conflict with the text and original meaning they support the overruling of precedents of the Constitution. That is particularly true that themselves struck down legislative of the very recent precedents (McConnell v. enactments (as was true of Roe v. Wade and

457 Stenberg v. Carhart)? Yet Cohen criticizes action decisions that the Constitution conservatives as inconsistent for supporting "protects society from integration." As the Court's partial retreat from Stenberg in Cohen surely knows, the Court merely ruled Gonzales v. Carhart. that the Constitution forbids some types of racial assignment of students. In no way did Finally, Cohen commits an egregious factual the justices claim that "integration" is itself error in claiming that the Supreme Court unconstitutional-especially if it is achieved conservatives ruled in its school affirmative by racially neutral policies.

458 "Bowing to Precedent"

The Weekly Standard April 17, 2006 Robert F. Nagel

[Excerpt: Some citations and portions omitted.]

At the outset of Samuel Alito's confirmation overrule it. Other Republican appointees- hearings, Judiciary Committee Chairman including Justices O'Connor, Kennedy, and Arlen Specter asked a series of questions Souter-refused in Planned Parenthood v. about the rather arcane subject of stare Casey to overrule Roe largely because they decisis, which is the judicial practice of think it is entitled to a special degree of following prior decisions. Eventually the respect as precedent. If the original abortion questions took an odd turn, with Specter decision is super-precedent and the Court in asking Alito whether he agreed that the right Casey emphatically affirmed that to abortion had special immunity from extraordinary status, then Casey must be reconsideration, that is, whether it is "super- super-duper precedent. precedent." Alito parried this by declining to "get into categorizing precedents as super- That Alito should have a bit of fun with this precedents or super-duper precedents." That logic is encouraging, but it does not tell us sort of terminology, Alito said, reminded how willing he would be to reconsider him "of the size of the laundry detergent in constitutional precedents. This is crucial, the supermarket." This exchange, which because 35 years of Republican domination must have puzzled most Americans, was of the Court has not resulted in the highly significant. Indeed, it touches on overruling of a single revolutionary Warren ideas that are basic to understanding why the Court decision-not Miranda v. Arizona, Court has become such a dangerous which imposed a new interrogation institution and whether the appointments of procedure on police departments across the Justice Alito and Chief Justice Roberts are country, not Griswold v. Connecticut, which likely to change things. began the constitutionalization of sexual freedom, not New York Times v. Sullivan, Although the practice of sticking with which turned the regulation of defamatory precedent is often associated in popular speech over to the courts, and not understanding with stodgy legalism, it was a Brandenburgv. Ohio, which even in this age shrewd subject for Specter to choose. Alito, of terrorism continues to protect most like any good lawyer, makes his living by advocacy of violence. working from the logic of prior cases. Moreover, a reluctance to disrespect or to The Roberts Court now faces not only unsettle prior understandings is especially Warren Court precedents but also, even natural for someone with conservative putting the abortion issue aside, dozens of instincts. Thus, while it is doubtful that Alito far-reaching precedents established during thinks the Court's famous 1973 abortion the Burger and Rehnquist eras. Those decision, Roe v. Wade, was solidly based in include cases prohibiting virtually all gender the Constitution, it is certainly possible that distinctions in the law, protecting he might be too devoted to precedent to homosexual sodomy, severely limiting

459 public religious observances, and preventing weighty considerations discussed in Casey, states from regulating profanity. nominee Alito replied blandly, "I think that the Court . . . should be insulated from Respect for precedent means not only that public opinion. [Courts] should do what the the justices should follow the specific law requires in all instances." But that is not outcomes of prior cases but also that they precisely the argument made in Casey. In must follow their logic. The logic of legions fact, Casey comes close to insisting on the of cases demands that judges second-guess opposite: that the Court should stay with a legislative and executive decisions on the decision wrongly interpreting the most sensitive moral and political issues and Constitution because a reversal of that that judges decide for themselves on the wrong decision would meet with public appropriate means for achieving preferred criticism and disapproval. Insofar as Casey policies. The simple fact is that rests on the relationship between judicial constitutional law as set out in the cases now legitimacy and stare decisis, the Court is requires judges to legislate from the bench. arguing that public opinion-in the form of Nominees to the Court can repeat endlessly attitudes about the Court-should trump that judges should interpret, not make, law. law. But unless they are willing. once on the Court, to rethink the logic of prior cases, Of course, the Casey Court does not say they will have to make law. outright that Roe was bad law. One would hardly expect that. But the justices do This displacement of political decision- acknowledge the possibility that Roe might making has had deeply harmful have been in error, and they do refer to "the consequences for our society. It has led reservations [some justices] may have in Americans to lose political self-confidence reaffirming the central holding of Roe." And and to depend pathetically on the judiciary they do say that these reservations are to resolve the most pressing public issues. overcome only by a reexamination of the At the same time, since judicial resolutions constitutional questions involved, tend to be couched in the language of high "combined with the force of stare decisis" principle, the Court's role has reduced the (emphasis added). opportunity for political compromise and thus has inflamed passions and distrust. More disturbingly, Casey does not exactly say that following the precedent set by Roe So Specter's questions about stare decisis is important in order to convince the public were not tangential or technical. They go to that the Court is in fact abiding by legal the heart of the question of whether even principle. It says, to be precise, that it is sustained, apparently effective efforts to rein important that the Court appear to be in the Supreme Court through the abiding by legal principle. Indeed, for all its appointment process can be more than high-toned references to the rule of law, the marginally effective. It is important, opinion is suffused with cynicism about the therefore, to consider carefully the relationship between law and politics. At justifications for the ideas of precedent and one point, for instance, it asserts that, (God help us) super-precedent. because the usual reasons for overruling precedent do not apply to the original No wonder Specter asked if Roe were not abortion decision, "the Court could not now super-precedent. When asked about the pretend to be reexamining the prior law with

460 any justification beyond present doctrinal the judiciary does respond to politics and disposition to come out differently from the thus tends to produce results with which Court of 1973." Pretend? And since when is many people agree. It is certain that a considered judgment that a constitutional multitudes of lawyers, most law professors, ruling was profoundly wrong as a matter of and virtually all political scientists believe law referred to as "a present doctrinal that the Court is influenced by political disposition to come out differently"? considerations. Few of these professionals, however, would therefore describe the More generally, in its discussion of judicial institution as illegitimate. legitimacy, the Court in Casey refers to the perception of legality rather than the reality. That the legalistic fastidiousness of Casey For instance, it asserts, "There is a limit to should be invoked in a confirmation hearing the amount of error that can plausibly be is downright weird. Even as Specter grilled imputed to prior Courts." Note: not the Alito about the need to separate law and amount of error that might properly (as a politics, the senator was engaged in a very matter of law) be imputed but the amount public process in which politicians try to that might be made plausible to the public. affect the direction the Court will take. Casey is concerned with the perception of Specter was doing so at a time when the line legality more than the substance. Even as it between political considerations and legal declares that law must be separate from considerations has largely vanished even in public opinion it elevates the public's the way that the justices attempt to justify opinion of the Court above law. their judgments. The doctrine that Roe is a super-precedent makes completely clear-as Casey's rather frantic concern for the do scores of decisions that rest on precedent Court's legitimacy is hard to explain. The rather than on the Constitution itself-that justices had no evidence about the public's the justices (and their apologists) now knowledge of the doctrine of precedent, no believe that the authority of the Court's evidence that people think the Court seldom decisions is more important than the overrules prior decisions. and no evidence authority of our fundamental law. that the public loses respect for the Court when it does reverse a prior ruling. Whether the Court plays a saner role in our Moreover, it is not at all self-evident that the political system in the years ahead will public thinks constitutional decisions are depend in large measure on whether the immune from political considerations or that justices can think realistically and critically this sort of realism would lead people to the about the practice of adhering to past conclusion that the Court is an illegitimate decisions. A necessary first step is to drop institution. It is quite possible, in fact, that the inflated conception of the Court's role among the general public the legitimacy of inherent in the word "super-precedent." the Court is based partly on the belief that

461 "Roberts, Alito and the Rule of Law"

The Huffington Post June 28, 2007 Geoffrey R. Stone

For the Supreme Court of the United States, It is hardly surprising that Roberts and Alito this will be remembered as the year of would pay such obeisance to the doctrine of intellectual dishonesty. In their Senate stare decisis in order to get themselves confirmation hearings, John Roberts and confirmed. Stare decisis is, after all, the Samuel Alito cast themselves as first-rate bedrock principle of the rule of law. Not lawyers, as masters of legal craftsmanship only does it promote stability and encourage who are committed to the principle of stare judges to decide cases based on principle decisis. John Roberts assured the Senate rather than on a preference for one or Judiciary Committee that judges must "be another of the parties before them, but it also bound down by rules and precedents." serves importantly to reduce the Invoking Alexander Hamilton and James politicization of the Court. It moderates Madison, he affirmed that "the founders ideological swings and preserves both the appreciated the role of precedent in appearance and the reality that the Supreme promoting evenhandedness, predictability, Court is truly a legal rather than a political stability," and "integrity in the judicial institution. process." Although acknowledging that it is sometimes necessary for judges to Disturbingly, John Roberts's and Samuel reconsider precedents, he stressed that this Alito's actions on the Court now speak should be reserved for exceptional much louder than their words to Congress. circumstances, where a decision has proved During the past year, Roberts and Alito have clearly "unworkable" over time. But in repeatedly abandoned the principle of stare general, "a sound judicial philosophy should decisis, and they have done so in a reflect recognition of the fact that the judge particularly insidious manner. In a series of operates within a system of rules developed very important decisions, they have over the years by other judges equally cynically pretended to honor precedent striving to live up to the judicial oath." while actually jettisoning those precedents one after another. Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a The tactic, in short, is to purport to respect a fundamental part of our legal system." This precedent while in fact interpreting it into principle, he explained, "limits the power of oblivion. Every first-year law student the judiciary" and "reflects the view that understands the technique. It works like this: courts should respect the judgments and the "Appellant argues that Smith v. Jones wisdom that are embodied in prior judicial governs the case before us. But Smith v. decisions." Stare decisis, he added, it is "not Jones arose out of an accident that occurred an inexorable command," but there must be on a Tuesday. The accident in this case a strong "presumption that courts are going occurred on a Thursday. We do not overrule to follow prior precedents." Smith v. Jones, but we limit it to accidents

462 that occurr on Tuesdays." This illustration on these grounds. As Justice Souter rightly is, of course, a parody of the technique. But observed in dissent, Alito's argument that it captures the Roberts/Alito style of judicial the earlier decision was distinguishable craftsmanship. because it involved a challenge to a legislative rather than an executive program Let me offer just a few examples. In has no basis "in either logic or precedent." Gonzales v. Carhart,the Court, in a five-to- four decision, upheld the constitutionality of In Parents Involved in Community Schools a federal law prohibiting so-called "partial v. Seattle School District, the same five- birth abortions," even though the Court had justice majority (with Justice Kennedy filing held a virtually identical state law a separate concurring opinion), in an opinion unconstitutional seven years earlier. As by Chief Justice Roberts, held that the Justice Ruth Bader Ginsburg rightly consideration of race by school districts in observed in dissent, the majority, which assigning students to public schools in order included Justices Roberts, Alito, Scalia, to promote racial diversity violates the Equal Kennedy, and Thomas), offered no Protection Clause, even though the Court principled basis for ignoring the earlier had unanimously declared more than thirty- decision. The only relevant change was five years ago that such a policy "is within Alito for O'Connor. the broad discretionary authority of school authorities." In Federal Election Commission v. Wisconsin Right to Life, the same five- As Justice Breyer rightly asked in dissent, justice majority held unconstitutional a "What has happened to stare decisis?" provision of the Bipartisan Campaign Breyer correctly observed that Roberts had Reform Act that limited political distorted the Court's precedents, "written expenditures by corporations, even though out of the law" a host of Supreme Court the Court had upheld the same provision decisions, and disingenuously reversed the only four years earlier. As Justice David course of constitutional law. Whereas Brown Souter rightly observed in dissent, Chief v. Board of Education had held that Justice Roberts's opinion offered no government could not constitutionally assign principled basis for disregarding the earlier black and white students to different schools decision. in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary In Hein v. Freedom from Religion proposition that government cannot Foundation, the same five-justice majority, constitutionally assign black and white in an opinion by Justice Alito, held that students to the same school in order to individual taxpayers had no "standing" to integrate them. challenge the constitutionality of the Bush administration's program of faith-based John Roberts and Samuel Alito billed initiatives as violative of the Establishment themselves as legal craftsmen who would be Clause, even though the Court had held guided not by rank ideology, but by a some forty years ago that taxpayers do have respect for the rule of law. They have now standing to challenge federal expenditures proved otherwise.

463 "In Praise of Judicial Modesty"

The National Journal March 18, 2006 Stuart Taylor, Jr.

During the hiatus between Supreme Court dominant in interpreting the Bill of Rights in confirmation battles, we may as well settle the the centuries to come?" clash between the conservative and liberal approaches to constitutional interpretation. Even when the original meaning is The battle lines are familiar. Conservatives, undisputed, it is often intolerable to led by Justices Antonin Scalia and Clarence conservatives as well as liberals. Many Thomas, say that the sole legitimate approach Framers did not see the flogging or even the is to follow the literal text and original execution of a 12-year-old for theft as "cruel meaning of constitutional provisions and and unusual punishment," for example. And amendments. Justices' policy preferences nothing in the text or original meaning of the should play no role, assert conservative Constitution was designed to bar the federal "originalists." But the claim is undercut government from discriminating based on somewhat by the consistency with which the race (or sex). This has not stopped Scalia or conservatives' votes on abortion, religion, Thomas from voting to strike down federal race, gay rights, and many other big issues racial preferences for minorities. Nor have happen to fit their policy preferences. they hesitated to invoke debatable interpretations of the Constitution to attack Liberals and many moderates prefer the laws regulating campaign finance and "living- Constitution" approach, which has imposing monetary liability on state been dominant at least since the Warren governments. Court. It involves using ancient but conveniently vague constitutional phrases to The living-Constitution approach may be enforce "evolving standards of decency," to even more problematic, because it has cut a promote equality, and to vindicate what wider swath through democratic governance sometimes-liberal Justice Anthony Kennedy with even less basis in the written likes to call "the right to define one's own Constitution. concept of existence, of meaning, of the universe, and of the mystery of human life." If the Constitution is an "invitation to apply Not surprisingly, constitutional evolution in current societal values," as Scalia has asked, the hands of liberals supports liberal policies. "what reason would there be to believe that the invitation was addressed to the courts Each school of thought is most persuasive in rather than to the legislature? . . . A debunking the other. Justice Stephen Breyer democratic society does not, by and large, skewers originalism in his 2005 book, Active need constitutional guarantees to ensure that Liberty: "Why would the Framers, who its laws will reflect 'current values.' Elections disagreed even about the necessity of take care of that." including a Bill of Rights in the Constitution. who disagreed about the content of the Bill of Consider Roper v. Simmons, last year's Rights, nonetheless have agreed about what decision barring the death penalty for any school of interpretive thought should prove murder committed before the killer's 18t

464 birthday. This would have been good decisions by other branches of government. legislation, in my view. But it was bad Embraced in general terms by then-Judges constitutional law. John Roberts and Samuel Alito during their Supreme Court confirmation hearings, the Justice Kennedy's claim for the 5-4 majority judicial-modesty approach is expounded more that modem Americans had reached a fully in a November 2005 Harvard Law "consensus" that no juvenile murderer should Review article by Posner, a prolific and ever get the death penalty was bogus: A ideologically eclectic legal scholar. majority (20) of the 38 states with the death penalty still allowed such executions. Posner begins by puncturing the myth that Kennedy's reliance on the laws of almost all judging can ever be completely apolitical. In foreign nations against the juvenile death constitutional cases, he shows, the Court is penalty was a fig leaf for his personal moral unavoidably "a political body . . . exercising preferences. So was his twisting of the discretion comparable in breadth to that of a relevant literature on juvenile psychology to legislature." The most sincere attempt at suggest misleadingly that minors are "lining up the facts alongside the incapable of mature moral reflection. And as constitutional text" usually provides no more Judge Richard Posner of the federal appeals objective a basis for preferring one outcome court in Chicago points out, Kennedy was to another than for "preferring a margarita to tellingly selective in his attention to social- a cosmopolitan." science literature: He ignored the studies suggesting that the death penalty may deter Next Posner explains that the justices would some would-be killers and thus save lives. look and act less like political manipulators if they "acknowledged to themselves the In a variation on the living-Constitution essentially personal, subjective, and indeed approach, Breyer argues in Active Liberty for arbitrary character of most of their interpretations designed to promote constitutional decisions." "participatory self-government" by voters. But Breyer's support for the 1973 decision Such self-awareness is rare among justices, that ended participatory self-government on Posner says, because it "would open a abortion-Roe v. Wade-casts doubt on his psychologically disturbing gap between their seriousness. Especially since his book does official and their actual job descriptions." not even mention this, the biggest and most controversial decision of the past 60 years. Instead, "cocooned in their marble palace, attended by sycophantic staff, and treated The bottom line is that nonadherents with extreme deference wherever they go, understandably see originalism and living Supreme Court justices are at risk of constitutionalism alike as smoke screens for acquiring exaggerated opinions of their ability imposing the justices' personal policy and character." preferences. The path of wisdom would be to acknowledge This is not healthy. How might we avoid the that "the law made me do it" is usually no worst excesses of each approach? more than a "rationalization for the assertion of power" of an essentially political nature, The best answer is judicial modesty. in the Posner adds. Justices who understood this sense of great hesitation to second-guess would probably be "less aggressive upsetters

465 of political and policy applecarts than they a deposition in a case about his sexual are." escapades would be political dynamite that would explode and interfere with his ability to Judicial modesty also converges with a perform his duties." pragmatic focus on what will be the actual consequences of a proposed decision. Three Third, Posner shows sympathy for Justice of Posner's examples-cases in which "the Breyer's solo, split-the-difference approach in law" did not dictate any particular outcome- two 5-4 decisions last June involving displays are illustrative. of the Ten Commandments. In one, Breyer joined liberals in invalidating the recent, First, he applauds the 5-4 decision (over a locally controversial installations of liberal dissent) in 2002 to allow Cleveland to Decalogue plaques in two Kentucky finance vouchers enabling low-income courthouses. ("I have no settled view" on that children to leave failed public schools for decision, Posner notes.) In the other, Breyer mostly Catholic private schools. The major joined conservatives in upholding a Ten disputes underlying the case-over whether Commandments monument on the grounds of the Cleveland experiment would work well the Texas state Capitol, where it had stood for for children and whether it would lead to 40 years, amid various secular monuments, sectarian conflict-turned on factual with little ado. projections beyond the Court's competence. Many critics (including me) have faulted "Actual social experiments are necessary to Breyer's hairsplitting for leaving the law generate the data needed for intelligent unclear. Not so Posner: "Compromise is the constitutional rule-making," explains Posner. essence of democratic politics and hence a "The pragmatist wants to base decisions on sensible approach to dealing with consequences, and it is very difficult to indeterminate legal questions charged with determine the consequences of a challenged political passion. . . . To give a complete policy if you squelch it at the outset." victory to the secular side of the debate (or for that matter to the religious side) could be Second, Posner deplores as "injuriously thought at once arrogant, disrespectful, and unpragmatic" the unanimous 1998 ruling needlessly inflammatory." against President Clinton in the Paula Jones lawsuit: "It should have been obvious to the Amen. Or, if that offends you, right on. justices that forcing the president to submit to

466 "Last Term's Winner at the Supreme Court: Judicial Activism"

The New York Times July 9. 2007 Adam Cohen

The Supreme Court told Seattle and It also overturned the policies of federal Louisville, and hundreds more cities and agencies, which are supposed to be given counties, last month that they have to scrap special deference because of their expertise. their integration programs. There is a word In a pay-discrimination case, the majority for judges who invoke the Constitution to interpreted the Civil Rights Act of 1964 in a tell democratically elected officials how to bizarre way that makes it extremely difficult do their jobs: activist. for many victims of discrimination to prevail. The majority did not care that the President Bush, who created the court's Equal Employment Opportunity conservative majority when he appointed Commission has long interpreted the law in Chief Justice John Roberts and Justice just the opposite way. Samuel Alito, campaigned against activist judges, and promised to nominate judges The court also eagerly overturned its own who would "interpret the law, not try to precedents. In an antitrust case, it gave make law." Largely because of Chief Justice corporations more leeway to collude and Roberts and Justice Alito, the court has just drive up prices by reversing 96-year-old completed one of its most activist terms in case law. In its ruling upholding the Partial- years. Birth Abortion Ban Act, it almost completely reversed its decision from 2000 The individuals and groups that have been on a nearly identical law. The school railing against judicial activism should be integration ruling was the most activist of outraged. They are not, though, because all. The campaign against "activist judges" their criticism has always been of "liberal dates back to the civil rights era, when activist judges." Now we have conservative whites argued that federal judges had no ones, who use their judicial power on behalf right to order the Jim Crow South to of employers who mistreat their workers, desegregate. These critics insisted they were tobacco companies, and whites who do not not against integration; they simply opposed want to be made to go to school with blacks. judges' telling elected officials what to do.

The most basic charge against activist This tern, the court did precisely what those judges has always been that they substitute federal judges did: it invoked the 14th their own views for those of the elected Amendment to tell localities how to assign branches. The court's conservative majority students to schools. The Roberts Court's did just that this term. It blithely overruled ruling had an extra fillip of activism. The Congress. notably by nullifying a key part of civil rights era judges were on solid ground the McCain-Feingold campaign finance law. in saying that the 14th Amendment, which a popular law designed to reduce the role of was adopted after the Civil War to bring special-interest money in politics. former slaves into society, supported

467 integration. Today's conservative majority protections, including minimum wage and makes the much less obvious argument that maximum hours laws, and Congressional the 14th Amendment protects society from laws against child labor. That period, known integration. as the Lochner era-after a 1905 ruling that a New York maximum hours law violated With few exceptions, the court's activism the employer's due process rights-is was in service of a conservative ideology. considered one of the court's darkest. The justices invoked the due process clause in a novel way to overturn a jury's award of We are not in a new Lochner era, but traces $79.5 million in punitive damages against of one are emerging. This court is already Philip Morris, which for decades the most pro-business one in years, and one misrepresented the harm of smoking. It is or two more conservative appointments hard to imagine that Chief Justice Roberts could take it to a new level. Janice Rogers and Justice Alito, who were in the majority, Brown, a federal appeals court judge who is would have supported this sort of "judge- often mentioned as a future Supreme Court made law" as readily if the beneficiary were nominee, has expressly called for a return to not a corporation. the Lochner era. The other disturbing aspect of the new conservative judicial activism is The conservative activism that is taking hold its dishonesty. The conservative justices is troubling in two ways. First, it is likely to claim to support "judicial modesty," but make America a much harsher place. reviews of the court's rulings over the last Companies like Philip Monis will be more few years show that they have actually voted likely to injure consumers if they know the more often to overturn laws passed by due process clause will save them. Congress-the ultimate act of judicial Employees will be freer to mistreat workers activism-than has the liberal bloc. like Lilly Ledbetter, who was for years paid less than her male colleagues, if they know It is time to admit that all judges are activists that any lawsuit she files is likely to be for their vision of the law. Once that is done, thrown out on a technicality. the focus can shift to where it should be: on whose vision is more faithful to the We have seen this before. In the early 1900s, Constitution, and better for the nation. the court routinely struck down worker

468 "Confirmation Report"

Slate January 12, 2006 Dahlia Lithwick

It must be excruciating. I mean, here is under very successfully for 200 years." The Judge Sam Alito, slogging through the Constitution is living because we live under single biggest job audition of any lawyer's it. life, and all anybody can talk about is John Roberts. Senate judiciary committee When asked what he thinks of precedential Chairman Arlen Specter, R-Pa., eight cases this morning, Alito goes with his minutes into the confirmation hearings: standard, "That is an important precedent of "The preliminary indications from Chief the court." That is a declarative statement, Justice John Roberts' performance on the not a judgment. He frequently adds that Court and his judiciary committee testimony precedent is not an "inexorable command." on 'modesty,' 'stability' and not 'jolting' the And then he tells us that it would be system suggest that he will not move the irresponsible for him to hazard an opinion court in a different direction." Then Sen. about any specific case or legal question Orrin Hatch, R-Utah, reminisces fondly: "As without going through the "whole judicial Chief Justice Roberts described it when he process." In other words, precedent should was before this committee last fall, judges bind, except when Alito goes through his are not politicians." Then comes Sen. Chuck painstaking process and finds that it Grassley, R-lowa, again borrowing from the shouldn't; other branches of government are last nominee: "Like Chief Justice Roberts, it due great deference, except when Alito's appears that Judge Alito tries to act like an meticulous legal analysis finds they are not; umpire, calling the balls and strikes, rather and innocent people have the constitutional than advocating for a particular outcome in a right to be free from execution, unless- case." On and on it goes. All anyone can after meticulous consideration-he finds talk about is how darn humble John Roberts they do not. Alito is properly renowned for is, and poor Alito-who really is humble- his adherence to that careful and rigorous just has to sit there and take it. process. But it starts to look as though absolutely nothing else has any weight with Alito can be deft, however. He has a funny him at all. little riff on how the notion of "super-duper stare decisis" sounds like a laundry soap. He In one of the most poignant exchanges of the says, three times, that stare decisis-while morning, Sen. Herb Kohl, D-Wis., asks the important-is not an "inexorable nominee-almost pleadingly-whether he command." It's his way of pushing back. thinks he might become a justice who "fills When Arlen Specter, R-Pa., asks this the same role" as Sandra Day O'Connor; if morning whether the constitution is a "living "in your opinion, you will turn out in a thing," his response is wonderful: "I think general way to be that sort of justice'" the Constitution is a living thing in the sense that matters, and that is that it is-it sets up Alito's response speaks volumes. He says a framework of government and a protection the quality he most admires in O'Connor is of fundamental rights that we have lived her "meticulous devotion to the facts." the

469 appreciation of her "dedication to a case-by- the relevant statutes and the case law and case approach." That, oddly enough, is emerge with an opinion only after a precisely the quality for which O'Connor meticulous analysis of the matter at hand. It has been most roundly criticized. Detractors, suggests that past decisions aren't predictive from the right and the left, never tire of and that every case brings a fresh start. It accusing her of approaching every case from hints at a totally neutral process, untainted scratch, creating "good-for-one-ride-only" by personal views or preferences. It says precedents, and fashioning new rules that there is no jurisprudential theory at work but depend entirely on her own subjective only a mechanical process. determinations. There is, say her critics, a terrific grandiosity in a jurisprudential But doesn't Alito's open-mind mantra imply approach that elevates one justice's views that with each fresh, new start he will be the over those of her colleagues and allows her lone, final, unfettered arbiter of every own judicial process to trump the wishes of question? Do we really want every legal her colleagues, the states, or the other question to be open and every rule to be branches of government. mutable? Is there something to be said for a nominee, like John Roberts, who didn't Theoretically, there should be comfort in insist that the answer to every question hearing a judge promise to approach each reside exclusively in his own open mind? new case as an open book; to drill deep into

470 "Originalism, Stare Decisis and the Promotion of Judicial Restraint"

22 Const. Comment. 271 (2005) Thomas W. Merrill

[Excerpt: Some citations and portions omitted.]

. . . In this essay, I argue that adopting a judicial activism has been rehearsed so strong theory of precedent in constitutional endlessly in the literature that it is virtually law would have at least one consequence as boring as judicial restraint itself that I regard as desirable: it would promote judicial restraint. . . . In arguing for a strong A second reason why judicial restraint is a theory of precedent on grounds of judicial good thing is that it protects expectations restraint, I recognize that I am staking out an and reduces retroactivity in legal decision idiosyncratic position. Judicial restraint is making. Legal change is not ruled out. The generally thought to be a conservative value, Constitution can be amended, statutes can be yet most conservative constitutional law enacted, new administrative regulations can scholars today seem to favor a weak theory be promulgated. But these sorts of changes of precedent. . . . My claim is that, occur prospectively, allowing individuals to abstracting away from these controversies adjust their behavior before they take effect. and contingencies about the political values If legal change is prospective, and courts of the current Court, someone who believes foreswear legal change through litigation, in judicial restraint should favor a strong then individuals can be confident the law theory of precedent, at least in constitutional applied by courts will be the same as the law law. on the books....

As I use the term, judicial restraint refers to A third reason why judicial restraint is a a style of judging that produces the fewest good thing is that it promotes equal surprises. Restrained judges render decisions treatment, in terms of treating similarly that conform to what an experienced lawyer, situated litigants similarly. The familiar with the facts of the case and the jurisprudence of no surprises means that relevant legal authorities, would counsel a today's litigant is treated the same way client would be the most likely outcome.... yesterday's litigant was treated-for good or If judicial restraint means predictability, ill. then restrained judges are plodders, not innovators. They are long on diligence, and Finally, and related to the last point, judicial short on imagination. They are utterly restraint helps judges resist pressure to bend conventional and boring. How can the rules in ways that operate to the something so dull be a good thing? disadvantage of unpopular claimants or minorities. One reason should immediately spring to mind: In a democracy, innovation in law and ... Let me briefly offer some reasons why, policy is supposed to come from officials at least in theory, a strong theory of elected by the People, not from unelected precedent-and a correspondingly reduced judges. The tension between democracy and role for originalist reasoning-will result in

471 more judicial restraint, at least in the context law, and law training, at least in this of modem American constitutional law. country, is grounded in the study of common law and the common law method. To a First, precedent provides a thicker body of significant degree-and I recognize that this norms with which to resolve constitutional cuts against my thesis-this is training in the disputes than originalism does. Take art of manipulation. Students are taught how virtually any constitutional dispute you want to read precedents broadly and narrowly, on the recent docket of the Supreme Court- how to exact principles not expressly stated, whether the Commerce Clause permits how to limit precedents to their facts. But Congress to regulate the use of home-grown training in the common law method is pot used for medical purposes, whether the also-and this is less recognized-a Takings Clause permits property to be socialization process that allows the lawyer condemned solely to promote economic to recognize the difference between development, whether the Cruel and propositions that are settled, and hence are Unusual Punishment Clause permits the not eligible for manipulation, and execution of juveniles. A Court that tried to propositions that remain unsettled, and resolve these issues solely in accordance hence open to divergent approaches. There with the text and original understanding is, lurking in the background, a conservative would have much less "stuff' to go on than bias in favor of preserving what is settled, a Court that tried to resolve these issues by and limiting manipulation to the margins. In examining precedent. The thinness of the set this way the common law method, if it does of relevant norms would make the outcome not generate anything like perfect judicial less predictable.... restraint, at least produces a style of decisionmaking that is more restrained than Second, precedent is more accessible to some imaginable alternatives. lawyers and judges than evidence of original understanding. Not only is there more of it, Theory is one thing, proof another. It is it is easier to find. Supreme Court obviously difficult to test a proposition such precedents are highly accessible. A full set as the one I am contending for here: that a of U.S. Reports resides in the chambers of strong theory of precedent is more likely to every federal judge in the country, and is produce judicial restraint. But there are easily accessed by most state judges and several sources of comparative evidence that practicing lawyers. These decisions have may shed light on the question. I will long been headnoted and indexed in various provide a suggestive rather than an ways and collected in commentaries. Today exhaustive account of these sources, and of course they are on line and fully offer my own impressions of what a more searchable electronically. The constitutional complete investigation would reveal. text is likewise highly accessible. But other evidence of original understanding is much First, it would be instructive to compare the less so.... behavior of the U.S. Supreme Court with courts of last resort in other legal systems. Third, the interpretation and application of Comparative law scholars have occasionally precedent is more compatible with the skill examined the proclivities of different set of the typical judge than is the national courts toward activism. These interpretation and application of evidence of efforts invariably rank the U.S. Supreme original understanding. Judges are trained in Court as world champion of activists. . . . A

472 weak adherence to precedent invites parties statutory construction cases. The Court seeking social reform to invest in generally follows a weak theory of constitutional litigation. If they succeed precedent in constitutional cases, but at least often enough in enlisting courts to adopt purports to follow a strong theory of new social policies, the pipeline of litigation precedent with respect to statutory will continually be refurbished with new decisions. . . . Does the Court's weak theory legal theories, sponsored by both the left and of precedent in constitutional cases render it the right. more activist, in the sense of being less predictable, in constitutional matters relative I suspect, but cannot prove, that a more to statutory interpretation? Although it complete survey of courts of last resort would be difficult to answer this question would show a strong correlation between the with rigorous proof, there is little doubt in respect for precedent and proclivity toward my mind that the answer is yes. The major activism. Certainly, the contrast between the innovations associated with the Supreme U.S. Supreme Court and the appellate courts Court-such as outlawing segregation, of England suggests such a relationship. The mandating one person one vote in legislative U.S. Supreme Court employs a weak theory districting, restricting gender discrimination, of precedent in constitutional law, and is limiting the use of the death penalty, notoriously activist. English courts, in creating rights to abortion and to engage in contrast, follow a strong theory of stare homosexual relations, wiping out decisis, and are generally regarded as highly governmental efforts to control pornography restrained. on the internet-have come in constitutional rulings. It is difficult to think of rulings of [I]t would be revealing to compare the equivalent innovation rendered as a matter behavior of the U.S. Supreme Court in of statutory interpretation. constitutional cases with its behavior in

473 "Narrow Victories Move Roberts Court to Right: Decisions Ignore Precedent, Liberals Contend"

The Washington Post June 29, 2007 Charles Lane

The Supreme Court's decision overturning this term's decisions may be the high-water school desegregation policies in two U.S. mark for the right rather than a tidal shift. cities yesterday culminates a fractious term in which the new Roberts court moved the "It is a conservative court, but at the same law significantly to the right, legal analysts time, just barely so," said Eugene Volokh, a said. professor of constitutional law at the University of California at Los Angeles. In a series of 5 to 4 decisions this term, the "The liberals are a forceful bloc and are court also upheld a federal ban on a late- willing to fight some old battles and win term abortion procedure and gutted a key some when they swing Justice Kennedy provision of the McCain-Feingold campaign around." finance law. Along with yesterday's schools case, each of these decisions left open the Still, Kennedy is a different kind of swing possibility of more change in areas of the voter from Justice Sandra Day O'Connor, law on which the court had seemingly ruled the centrist whom Samuel A. Alito Jr. definitively within the past decade. replaced in 2006. He seems more likely than she was in recent years to side with the right "Conservatives got everything they could in close cases. Kennedy wrote the court's reasonably have hoped for out of the term," opinion upholding the federal ban on what said Thomas C. Goldstein, a Washington opponents call "partial birth" abortion. lawyer who specializes in Supreme Court litigation. "The table is set, particularly if This term, the justices split 5 to 4 in 24 there are more changes in the court, for cases, a third of the total. Kennedy sided wholesale changes in constitutional law. with the four most conservative justices- There were some incremental steps, but they Roberts, Alito. Antonin Scalia and Clarence were in a distinct direction and a uniform Thomas-in 13 of the 5 to 4 cases, while direction." backing liberals John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and The conservatives' advance was limited by Stephen G. Breyer just six times. In five the occasional defection of Justice Anthony other 5 to 4 cases, the court did not split M. Kennedy. Yesterday's case showed along liberal-conservative lines. Kennedy's moderating influence, as he issued a concurring opinion that may have The most significant victory of the term for blunted the practical impact of the court's liberals came when they secured Kennedy's ruling. vote for a ruling that required the Environmental Protection Agency to justify Because of Kennedy's continued role as a its refusal to regulate greenhouse gases in swing voter, some analysts suggested that vehicle exhaust.

474 And whereas Kennedy occasionally applied cases yesterday, Breyer shifted in his chair, the brakes to the court's conservatives, rubbed his temples and occasionally shook Scalia and Thomas sometimes demanded his head. When his turn came to read his that they move further and faster to the right, dissent, Breyer spoke heatedly for almost a suggesting that Roberts and Alito were half-hour, much longer than the chief justice straining to depict their rulings as consistent himself had taken to read his opinion. with the court's past cases, rather than just overruling some of them outright, as they The 77-page opinion, twice as long as any should. other dissent Breyer has written, clearly occupied much of Breyer's time and energy That echoed the accusations fiom the court's during the term. liberals, who have seemed increasingly united in their view that the Roberts court is As his liberal colleagues have done in their deviating from settled law without openly dissents, Breyer accused Roberts and the saying so. conservatives of violating stare decisis, the legal principle that decisions should The liberal justices-Stevens, Souter, generally be left undisturbed. Ginsburg and Breyer-have taken turns reading their dissenting opinions from the "The majority is wrong," Breyer said. "It's bench in a show of dismay with the court's not often in law that so few have changed so direction. much so quickly."

"Someone like Ginsburg, who used to be a The charge of ignoring or twisting precedent cautious liberal, is now an angry liberal," stings, because it is essentially an accusation said Neil S. Siegel, a professor of law at that the conservatives have abandoned the Duke University and a former law clerk of judicial restraint that they so often preach, in Ginsburg's. pursuit of policy results they favor.

And the liberals' dismay has been evident And Roberts, who pledged "judicial even in what might otherwise have been modesty" and respect for precedent in his relatively minor, technical cases. On June 2005 confirmation hearings, has responded, 14. Thomas announced a 5 to 4 ruling in defending his rulings as applications of the which the conservatives said that a court's existing doctrine. convicted murderer could not pursue an appeal because he had missed a filing In the campaign finance case, he argued that deadline, even though his attorney had relied past rulings permitted the court to entertain on a judge's erroneous assurance that he had challenges to specific applications of enough time. McCain-Feingold and that his decision to permit a Wisconsin antiabortion group's "It is intolerable for the judicial system to television ad was consistent with case law treat people this way," Souter wrote. The that barred regulation of all ads except those majority could reach its result, he said, only that expressly advocate the election or defeat by overruling two little-known cases from of a particular candidate. the 1960s. Yesterday, Roberts peppered his opinion As Roberts read his opinion in the schools with phrases such as "under our existing

475 precedent" and "the established law." He David J. Garrow, a senior fellow at the also frequently buttressed his arguments University of Cambridge, England. with quotations from the writings of O'Connor. as if to emphasize that his views Roberts also responded in kind to Breyer, were well within the court's historical arguing that his dissent "alters or misapplies mainstream. our well-established legal framework" and that his "appeal to stare decisis rings "I thought Roberts was trying to wrap particularly hollow." himself in Sandra Day O'Connor," said

476 "The Intrinsically Corrupting Influence of Precedent"

22 Const. Comment. 289 (2005) Michael Stokes Paulsen

[Excerpt: Some citations and portions omitted.]

Whatever one's theory of constitutional justice if one is not bound by the language interpretation, a theory of stare decisis, and original meaning of the Constitution poured on top and mixed in with it, always itself? It would be silly to let errant (on these corrupts the original theory. If one is an criteria), unjust precedents block the way, originalist-that is, if one believes that the especially if the Constitution itself is not Constitution should be understood and allowed to do so. applied in accordance with the objective meaning the words and phrases would have Merrill's view is a variation of other policy- had to an informed general public at the time driven approaches to constitutional law. His of their adoption-then stare decisis, favored policies-stability and understood as a theory of adhering to prior predictability-are simply more judicial precedents that are contrary to the "conservative" (in an incrementalist sense) original public meaning, is completely and nonsubstantive than those animating irreconcilable with originalism. Stare decisis other policy-driven approaches. But aside contradicts the premise of originalism-that fiom its merits or demerits as a theory of it is the original meaning of the words of the constitutional interpretation, Merrill's view text, and not anything else, that controls of precedent as a stabilizing force has its constitutional interpretation. To whatever own problems. One problem is the extent precedents inconsistent with original overconfident assumption that precedents meaning are accepted as controlling need less interpreting, or require less legal (whether sometimes and to some extent, or competence faithfully to interpret (aren't we always and absolutely), such acceptance still reading words, just more of them, and undermines-even refutes-the premises ones that sometimes contradict each other?), that are supposed to justify originalism. or are less subject to manipulation or evasion, or provide greater clarity, than If one is a non-originalist, pragmatist, or direct interpretation of the Constitution otherwise outcome-driven "interpreter" of through some interpretive methodology or the Constitution-that is, if one believes that another. A second problem with this view is the Constitution should be interpreted in that it is usually alloyed with some (or such a manner as to produce justice, good many) other methodology (or outcomes, or workable and fair solutions to methodologies) of constitutional social and political problems, and not be interpretation, combining the problems and inhibited by the constraints of constitutional imprecisions of both, with an unclear but text, structure, and history-stare decisis certainly nonabsolute degree of "tilt" in the corrupts and undermines such an direction of precedent and away from the interpretive theory, too. After all, why other interpretive approach(es). That is still should an interpreter be bound by precedents a corruption of the other method(s) of that stand in the way of one's conception of constitutional interpretation, just corruption

477 to some uncertain lesser degree. The correct answer to all of this, of course, is that stare decisis in constitutional law- A.third problem with this view is that it does the practice of giving some degree of not really provide a justification for stare decision-altering force to prior judicial decisis, in the definitional sense of adhering interpretations simply because they are prior to a precedent decision even where one judicial interpretations and in contradiction would otherwise think it wrong (on other of what one otherwise would conclude are criteria). It only provides a justification for correct principles of constitutional reading and considering precedent decisions, interpretation and correct interpretive results in order to assist the present interpreter in produced by such principles-is utterly figuring out the right answer, not for binding unjustifiable. Stare decisis corrupts whatever the present interpreter to a result that he or interpretive method it touches. It corrupts she otherwise is fully persuaded is incorrect, fundamentally correct interpretive on other interpretive grounds. And if principles-original public meaning precedent is not binding, we are not really textualism. It corrupts fundamentally talking about a doctrine of stare decisis. incorrect interpretive principles-policy- (And we are also undermining the claim that driven interpretive theories of every kind. precedent produces stability.) And it corrupts every interpretive theory that tries to craft an "in-between" approach, The final problem with the Merrill view, and including, rather ironically, every theory that others like it, is the one common to all accords some measure of interpretive force precedent-based theories of constitutional to precedents solely by virtue of being adjudication. The turtle underneath it is, at precedents. some level, the premise that judges' interpretations create, fix, or "liquidate" In short, whatever theory one concludes is constitutional meaning, after the fashion of the correct approach to interpreting and the common law, at least to some (unclear) applying the Constitution, a theory of stare degree. On that premise, however, Paulsen's decisis will inevitably contradict its core Rule still holds: if judges' decisions have the justifying premise(s). A doctrine of stare power to establish constitutional meaning, a decisis always works in opposition to correct doctrine of stare decisis corrupts that theory interpretation of the Constitution. by vesting earlier judges with the power to usurp, to some degree (usually unspecified), Is there anything at all that can be said in later judges' power to establish defense of such a doctrine? constitutional meaning.

478 "Precedents Begin Falling for Roberts Court"

The New York Times June 21, 2007 Linda Greenhouse

No Supreme Court nominee could be several plausible candidates as the court confirmed these days without paying homage enters the final days of its term, including the to the judicial doctrine of "stare decisis," 2003 decision that upheld advertising Latin for "to stand by things decided." Yet restrictions in the McCain-Feingold campaign experienced listeners have learned to take finance law; a 1968 decision that let taxpayers these professions of devotion to precedent go to federal court to challenge government "cum grano salis," Latin for "with a grain of policies as violating the separation of church salt." and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, Both Chief Justice John G. Roberts Jr. and the court overturned a pair of antitrust Justice Samuel A. Alito Jr. assured their precedents from the 1940s that were Senate questioners at their confirmation noticeably at odds with modem antitrust hearings that they, too, respected precedent. analysis.) So why were they on the majority side of a 5-to-4 decision last week declaring that a 45- Sometimes the court overrules cases without year-old doctrine excusing people whose actually saying so. Some argue that this is "unique circumstances" prevented them from what happened in April, when a 5-to-4 meeting court filing deadlines was now majority upheld the federal Partial-Birth "illegitimate"? Abortion Ban Act without making much effort to reconcile that ruling with a decision It was the second time the Roberts court had in 2000 that found a nearly identical Nebraska overturned a precedent, and the first in a law unconstitutional. decision with a divided vote. It surely will not be the last. As a technical matter, the new decision, Gonzales v. Carhart, left the earlier ruling The fact is that the court regularly revisits and still on the books, doing its overruling "by reconsiders its precedents, as Chief Justice stealth, without having the grace to admit that William H. Rehnquist, the current chief is what they were doing," in the words of justice's former boss and mentor, once Ronald Dworkin, the legal philosopher, who observed succinctly. "Stare decisis is not an wrote a highly critical appraisal of the new inexorable command." he said in a 1991 decision in The New York Review of Books opinion that included, in a page and a half of last month. "Justices Roberts and Alito had small type, a list of 33 precedents that the both declared their intention to respect court had overturned in the previous 20 years. precedent in their confirmation hearings, and no doubt they were reluctant to admit so soon So the question is not whether the Roberts how little those declarations were worth," court will overturn more precedents, but how Professor Dworkin said from London in an often, by what standard and in what terms. As e-mail message. to which precedents will fall next, there are

479 Abortion, of course, is a special case. The (this was the majority's stated reason for debate over whether the court should or could discarding the "unique circumstances" overturn Roe v. Wade has been going on so precedents in last week's decision, Bowles v. long and with such intensity that it tends to Russell), or it has been a source of confusion pre-empt any discussion of the subtleties of in the law, or experience has proven it stare decisis. "unworkable."

Senator Arlen Specter, the Pennsylvania But the real reason is usually that a changing Republican and abortion-rights supporter who court in changing times has come to see the at the time was chairman of the Senate question in a new light. In Bowers v. Judiciary Committee, pressed Chief Justice Hardwick in 1986, the Supreme Court Roberts at his confirmation hearing to agree dismissed as "facetious" the notion that the with him that Roe v. Wade was not just a Constitution offered protection for gay rights. precedent, but a "super-duper precedent." Mr. Overturning that decision 17 years later, Specter's point was that because the court in Justice Anthony M. Kennedy declared for the 1992 had considered whether to overturn Roe majority in Lawrence v. Texas: "Bowers was but reaffirmed it instead, the 1973 precedent not correct when it was decided, and it is not had acquired an inviolate status. His correct today." implication was that if Roe was just an ordinary precedent, it was as vulnerable as Still, the court will strive to provide an any other with which a new majority became explanation, if only to avoid the kind of disenchanted. accusation that Justice Thurgood Marshall leveled at the majority when, taking The nominee obviously knew exactly what advantage of two retirements, the court Mr. Specter was driving at, but he gave away reversed course and by a vote of 5 to 4 made nothing. He acknowledged the historical "4victim impact" testimony admissible in death accuracy of the senator's chronology, but penalty hearings. "Power, not reason, is the would not follow him to the land of "super- new currency of this court's decision duper" precedents. When the court explicitly making." Justice Marshall declared on the overturns precedent, it tends to offer a final day of the court's 1990 term. Two hours checklist of justifications: the precedent has later, he announced his own retirement, his eroded over time through disuse or disregard words still hanging in the air.

480 "Process Makes Perfect"

Slate July 7, 2006 Roger Citron

Every year, immediately after the Supreme (which they see as an autonomous discipline Court term ends, the politics of law briefly governed by reason and principle) and politics becomes our national obsession. This year, (which they view as merely the expression of inevitably, the pundits' focus was on just how one's political preferences). far to the right the court had shifted as a result of the arrivals of Chief Justice John Roberts Roberts sounded these notes at his hearings, and Justice Samuel Alito. The verdict: Not pledging to be "modest"-no more than "an that much, according to Linda Greenhouse of umpire calling balls and strikes"-and to the New York Times. Charles Lane of the decide cases narrowly so as to promote Washington Post concurred in this judgment. consensus on the court. At a speech at As did Dahlia Lithwick of Slate. According to Georgetown this spring he reiterated this this analysis, Roberts' first term can be seen preference for narrow, unanimous decisions. as a disappointment to conservatives because And the court under Roberts did enjoy an the court achieved only a minimal shift to the initial run of unanimity and modesty. As the political right. term progressed, however, it splintered on a number of decisions, and on the last day of A second disappointment to conservatives the term, refused to defer to the Bush was Roberts' apparent failure to rein in the administration's contention that there should "activist" court. That judgment may be short- be no judicial review of the administration's sighted. Although Supreme Court justices are military commissions. Judicial supremacy, the a notoriously independent bunch, Roberts commentators maintained, thus remains alive made substantial progress in bringing about a and well. more harmonious court. More importantly, Roberts seemed to deliver on a promise made And as for Roberts? His earlier talk of at his confirmation hearings: to be a more humility and restraint were decried as a minimalist justice and to be guided by legal smoke screen for his conservative political principles rather than political preferences. preferences.

John Roberts presented himself as a "legal But not so fast. Because while the court's process" justice at his confirmation hearings. military commissions decision will likely be Legal process was a theory propounded by a the defining case of Roberts' first term-and number of elite law professors in the 1950s in it casts a long shadow over the chief justice's response to the activism of the Supreme Court goals of promoting institutional modesty and under Chief Justice Earl Warren. Adherents unanimity on the court-we should hold that cases should be decided by "neutral acknowledge that Roberts still made principles" and that the more representative substantial progress in bringing about his government actors (Congress, the president, goals. and his representatives) should decide big policy questions. They believe in-indeed Under Roberts' management, the court was a they emphasize-the distinction between law more harmonious institution than it has been

481 in the past. According to statistics compiled be a popular sport. Although President Bush by the Georgetown University Law Center's has appointed hundreds of sitting federal Supreme Court Institute, the court issued judges, some on the far right continue to more decisions without dissents than in its attack any federal court that disagrees with previous two terms. The court also issued them. fewer 5-4 decisions, fewer dissenting opinions, and fewer separate opinions Roberts' ability to deliver a more modest, (concurrences and dissents) than in the "legal process" court depends upon whether previous term. Complete unanimity on the he is deemed sincere in his conviction that court may always be a mirage, but we're law is separate from politics and can be closer to consensus than we were during the consistent in his efforts to reduce the role of last term of former Chief Justice William judicial oversight in American political life. A Rehnquist. truly principled Justice follows the law, even when that route leads to a disappointing A close look at the term also shows the court decision. Such sincerity can be measured in rediscovering the "passive virtues"- two ways. Do his decisions appear to be professor Alexander Bickel's phrase for results-oriented? And do his decisions seem resolution of cases without deciding them (by judicial rather than political? returning them to the lower courts or dismissing them without a decision). The The answer to the first question is possibly, passive virtues helped the court avoid but not definitely, yes. In his first term, political controversy in resolving three cases. Roberts voted with the conservative bloc In addition, the court decided two more frequently than the liberal bloc. (In controversial cases-one involving abortion particular, he voted more often with Justice rights, the court's perpetual third rail- Alito than any other justice and less often "unanimously on narrow grounds," according with Justice John Paul Stevens-now to the Supreme Court Institute report. A considered the court's most liberal justice- modest Supreme Court won't be built in a than any other justice.) Furthermore, Roberts' day. But the court's use of these techniques votes this term tended toward deference to suggests a greater inclination toward restraint other government actors-which in the under Roberts than under Rehnquist. current climate tend to support politically conservative results. Thus, depending upon The question for the future: Can Roberts your political orientation, his votes were continue to orient the court toward his goals either cast by a principled jurist or a politician of judicial modesty and greater consensus on in a black robe. This is a complicated question the court? If so, he may succeed in his task of to sort out, and the truth is it's too early to distancing the court from the political fray. tell.

On both the left and the right, skeptics deny But consider two closely decided cases in that law can be distinguished from politics. which there was no clear majority because the Critical legal scholars and their disciples on justices' votes were splintered. In League of the left insist that court decisions are no more United Latin American Citizens v. Perry, the than the exercise of political power, and such voting rights case, Roberts voted consistently cynicism seemed vindicated by, for instance, against judicial correction of Texas' the Supreme Court's decision in Bush v. redistricting map. Was Roberts' vote a stand Gore. On the right, court-bashing continues to against judicial oversight of redistricting (a

482 political action) taken by the Texas legislature and regulations. After reading Roberts' first (a representative body)? Or a vote to preserve two decisions, David Barron of Harvard Law the districts created by the Republican School described Roberts' citation practice legislature, presumably for the party's earlier this year as "statecraft by hornbook." benefit? You make the call. Although Barron noted that the opinions have "a kind of no nonsense quality," he also Similarly, in Rapanos v. United States, the expressed concern that they "suggest a vision court rejected the Army Corps of Engineers' of constitutional decision making that is approach to determining whether wetlands are awfully cramped and technical," in which "waters" covered by the Clean Water Act. "any sense of the broader legal culture that Roberts joined the other four conservative produces authoritative legal statements" could justices in ruling against the government. But be lost. before his vote can be dismissed as a political preference for business and against Roberts would likely be delighted with this regulation, note that his brief concurring description of his writing. A legal process opinion chastised the agency for failing to justice is the first to acknowledge that neither properly address the problem itself-thereby he nor the court can do it all. The question for defaulting on the general claim by a the next term-with cases involving partial- government agency that it is entitled to birth abortion, the role of race in public high- deference. school education, and the EPA's authority to regulate carbon dioxide emissions-is Finally, turn to Roberts' written opinions. His whether Roberts will continue to move, and to decisions, so far, have been straightforward be seen as moving, the court away from the and clear; he tends to eschew footnotes and to political fray. cite only legal authority-prior cases, statutes,

483 "Split Decision"

The New Republic June 29, 2007 Cass R. Sunstein

Many people feared, or hoped, that President taxpayers may not object if the executive Bush's appointees to the Supreme Court branch uses public money to make direct would be essentially indistinguishable from grants to a particular church, or even to Justices Antonin Scalia and Clarence build a church where only Catholics may Thomas. It turns out that with stunning worship. regularity, Chief Justice John Roberts and Justice Samuel Alito are indeed voting the The case revisited the Court's 1968 decision same way as their conservative colleagues. in Flast v. Cohen, which held that when Just this week, the four justices, along with Congress has explicitly said that taxpayer Justice Anthony Kennedy, formed the funds will go to religious organizations, majority in decisions involving free speech, taxpayers are entitled to make constitutional campaign finance, race-conscious pupil objections in federal court. assignments, and taxpayers' standing in federal court. In so ruling, the Court pointed out that a major purpose of the Constitution's Despite this seeming consensus, however, Establishment Clause, emphasized by James an intriguing division is emerging among the Madison, is specifically to ensure that Court's conservatives. Roberts and Alito are federal funds do not support religion. For conservative minimalists. They prefer to this reason, the ordinary ban on "taxpayer preserve previous decisions and work within standing" would be relaxed when taxpayers the law's existing categories. Their opinions objected that their money was going to avoid theoretical ambition and tend to be support religious institutions. narrowly focused on the particular problem at hand. By contrast, Scalia and Thomas are Conservatives have long despised Flast. conservative visionaries, parallel, in many They believe that the Court has been far too respects, to such liberal predecessors as aggressive in insisting on a sharp separation Hugo Black and William 0. Douglas. They between church and state. By allowing favor fundamental change, immediately. and taxpayers to challenge federal expenditures, their opinions are sweeping and broad, often Flast increased the judicial role in policing calling for overruling longstanding that separation. Moreover, conservatives precedents. object to the idea that taxpayers or citizens should ever have access to federal court. This division was most strikingly apparent They insist that federal judges should get in this week's decision resolving the involved only at the behest of those who important question of whether and when have a personal injury, such as a loss of taxpayers are permitted to challenge federal liberty or property, that is both "concrete" expenditures to religious organizations. In and "particularized." They believe that brief, the Court concluded that taxpayers taxpayers and citizens, as such, lack a may not object when the executive branch concrete, particularized injury. simply uses their money to fund religion. Indeed, because any harm to them is speculative,

484 remote, or merely psychological. activities of the President, his staff, and other Executive Branch officials." And if This week's decision involved a problem taxpayers could so enlist the federal courts, very close to that in Flast. In its faith-based they would be "virtually continuing initiatives, the White House used taxpayer monitors of the wisdom and soundness of funds to pay for various conferences, and Executive action," which "is not the role of these were alleged to promote religion as the judiciary." such, in violation of the Constitution. Just as in Flast,taxpayers objected that their money Crucially, however, Alito said that the was being used unlawfully. Court's decision merely would "leave Flast as we found it," neither extending it nor The Bush Administration attempted to overruling it. The Court would "decide only distinguish the current case from Flast, the case at hand." Taxpayers would continue arguing that in that case Congress had to be permitted to challenge any explicit specifically earmarked federal funds for congressional appropriation of taxpayer religious institutions, whereas here the funds for religious purposes. Scalia, joined executive branch was using funds from a by Justice Thomas, refused to join the Alito general appropriation. Judge Richard opinion, which he described as relying "on Posner, writing for the court of appeals, the random and irrational." Scalia argued for responded that this was a distinction without a more ambitious and altogether different a difference. In the end, all money is route. In his view, Flast is a "blot on our appropriated by Congress, and if taxpayer jurisprudence" and should be overruled. funds are going to religious institutions, it Taxpayers could not claim a concrete and does not matter whether Congress has particularized injury; any harm they suffered specifically ordered the funding. Posner was a form of "Psychic Injury," not suited added that if taxpayers did not have for adjudication in federal court. Going back standing, the executive branch would be to first principles, Scalia urged that Flast able to use a general appropriation for was evidently wrong, and its errors had to be whatever religious purpose it chose-for "addressed head-on." "Minimalism," Scalia example, to build a specific church. In his said, "is an admirable judicial trait," but he view, Flast must be read to allow taxpayers contended that "the soul of the law" is "logic to object to such blatantly unconstitutional and reason," which the Court's minimalist action. approach failed to offer. Thus he urged that the Court should insist on "the imposition of In his opinion, Alito took the minimalist logic and order" on the law, founded on "a route. Flast, he explained, was a "narrow" logical theoretical underpinning." ruling that depended on a specific fact: Congress had expressly authorized the use Here, in a nutshell, is the division between of federal funds for religious purposes. In the Court's conservative minimalists and its this case, by contrast, there had been no visionaries. In the context of a particular express authorization. Alito argued that it case, which can be resolved without made sense to forbid taxpayers to challenge reference to fundamental principles, Alito executive uses of general appropriations, (along with Roberts, and also Kennedy) because otherwise, taxpayers could "enlist does not question past decisions, avoids the the federal courts to superintend . . . the most fundamental disputes, and avoids speeches, statements, and myriad daily theoretical ambition. By contrast, Scalia

485 (along with Thomas) is not cautious about conservatives, usually joined by Justice objecting to a "chaotic set of precedents" Kennedy. In problems ranging from abortion and rethinking them from the ground up. We to employment discrimination to campaign can see the same disagreements in the many finance to student speech to affirmative other areas, including abortion and action to the war on terror, it is entirely campaign finance, in which Alito and predictable that where current law leaves Roberts worked within existing precedent gaps or uncertainty, the minimalists and the while Scalia and Thomas urged that Roe v. visionaries will be able to make common Wade and important campaign finance cause. decisions should be jettisoned immediately. It is harder to predict what will happen down In the short term, the fissures between the the line. Suppose that the continued vitality Court's conservatives do not seem to make of Flast v. Cohen or Roe v. Wade is raised in much difference to actual outcomes. While the near future-how will Alito and Roberts minimalists tend to be unpredictable, Alito proceed in that event? It is clear that the two and Roberts have shown no unpredictability justices do not like to overrule precedents at all, almost always siding with Scalia and when it is not necessary to do so in order to Thomas in controversial cases. resolve the case at hand. What is less clear is Notwithstanding their differences, Alito and how the minimalists will proceed when a Scalia agreed that, so long as there has not case cannot be decided without taking a been a specific congressional appropriation, stand on a precedent that they reject in taxpayers are never permitted to object to principle. The minimalists and the executive branch expenditures of federal visionaries have been able to agree on how funds for arguably unconstitutional to resolve the key cases this term. It remains purposes. To the extent that existing law to be seen if their alliance will fracture when allows room to maneuver, it seems there will the question of fundamental constitutional apparently be a solid "block" of four change simply cannot be postponed.

486 "So, Do You Believe in 'Superprecedent?"'

The New York Times October 30, 2005 Jeffrey Rosen

As he prepares for another Supreme Court would be at odds with the influential part of confirmation battle, President Bush faces the conservative movement that argues that intense pressure to quell the uproar from the Constitution should be strictly construed social conservatives who feared that Harriet in accordance with the intention of the Miers was not a true strict constructionist. framers, regardless of the consequences. But the idea of superprecedents is more powerful Many conservatives say they hope that the than a simple affirmation of stare decisis. new nominee will follow the lead of Justice Antonin Scalia and, even more, Justice An origin of the idea was a 2000 opinion Clarence Thomas, who has become a written by J. Michael Luttig, a judge on the conservative hero because of his willingness United States Court of Appeals for the to overturn many liberal precedents of the Fourth Circuit, who regularly appears on last 70 years, from Roe v. Wade to cases short lists for the Supreme Court. Striking upholding the New Deal. down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge But social conservatives face a problem: a Luttig wrote, "I understand the Supreme new theory of "superprecedents" that is Court to have intended its decision in gaining currency on the right as well as the PlannedParenthood v. Casey," the case that left. reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a The term superprecedents first surfaced at woman's fundamental right to choose the Supreme Court confirmation hearings of whether or not to proceed with a Judge John Roberts, when Senator Arlen pregnancy. Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he Before the Roberts confirmation hearings, agreed that certain cases like Roe had Mr. Specter talked informally to several law become superprecedents or "super-duper" professors, including this writer, who precedents-that is. that they were so deeply mentioned the theory of super-stare decisis, embedded in the fabric of law they should noting that Judge Luttig thought it was be especially hard to overturn. important that Roe had been repeatedly reaffirmed by different Supreme Courts, In response, Judge Roberts embraced the composed of justices appointed by traditional doctrine of "stare decisis"-or, presidents from different parties and "let the decision stand"-and seemed to confirmed by Senates controlled at times by agree that judges should be reluctant to Democrats and Republicans. overturn cases that had been repeatedly reaffirmed. And Mr. Specter adopted this theory. At the hearings, he described their first courtesy If that is the case, Chief Justice Roberts call, in which he asked Judge Roberts about

487 the theory of super-stare decisis. superprecedents. Mr. Gerhardt said it was hard to be confirmed to the Supreme Court During the hearings, Judge Roberts, who today unless you accept, as Judge Roberts was serving on the United States Court of did, that the Constitution protects a right to Appeals for the District of Columbia Circuit, privacy. "I think the cases upholding the declined to say whether he agreed that Roe constitutionality of the New Deal and the was a superprecedent or even a "super- 1964 Civil Rights Act are also duper" precedent. But, he said, the Casey superprecedents," he said, along with cases decision is itself "a precedent on whether or striking down sex discrimination and not to revisit the Roe v. Wade precedent." upholding the Miranda warnings. "It's clear And he also noted that the court over the that bedrock precedents are a very powerful past 80 years had reaffirmed the idea that the force with lawyers," said Daniel Farber of Constitution protects a right to privacy. the University of California, Berkeley, another panelist at the Minnesota Later in the Roberts hearings, Charles Fried, conference. a prominent conservative legal scholar at Harvard, agreed explicitly that Roe was a "If somebody had told me in 1968 that superprecedent. As solicitor general under Republicans would make all but two of the President Ronald Reagan, Mr. Fried had Supreme Court appointments of the next 37 asked the court to overturn Roe. But years and at the end of that time, Miranda testifying on behalf of Judge Roberts, he would still be on the books, there would be a said that Roe had become a super-duper constitutional right to abortion, and all the precedent that would not and should not be Warren court's major decisions would still overturned, because it was reaffirmed in be there, I never would have believed it." 1992 and extended in subsequent decisions protecting gay rights and the right to die. Still, many conservative scholars say they "It's a big tree, but it has ramified and remain skeptical. "The fact that something is exfoliated," said Mr. Fried, and overturning a superprecedent doesn't give us a reason to it "would be an enormous disruption." stick to it if it's wrongly decided," said Randy Barnett of Boston University Law The theory of superprecedents is still so new School in a response to Mr. Farber and Mr. that it has not been thoroughly debated. But Gerhardt at the Minnesota conference. since the Roberts hearings, prominent liberal academics have seized on the idea as their Other conservatives say they are alarmed by best chance in a generation for countering the embrace of superprecedents by the claim of conservative "strict Republican moderates. "This whole notion constructionists" that any precedent should of superprecedent is puzzling, and it's hard be overturned if it is inconsistent with the to know what Arlen Specter means by it," original understanding of the Constitution. says Terry Eastland, the legal commentator of The Weekly Standard. "A case like Roe is At a panel discussion at the University of not accepted across the board. It's been quite Minnesota this month, Michael Gerhardt of a controversial decision from the beginning, the University of North Carolina said that and it really falls into the category of cases cases that have been accepted by the Senate, clearly open to discussion." the White House and different political leaders over time should be considered Indeed, as early as 1992, Earl Maltz, a

488 conservative legal scholar at Rutgers, kind of legal and social consensus that I criticized the Casey decision for endorsing don't think is true of Roe," Mr. Farber said. the idea that "if one side can take control of Mr. Gerhardt agreed. "I think it's hard to the court an issue of major national argue that Roe is a superprecedent," he said. importance," it can protect its position from "Roe has been opposed by three presidents being reversed "by a kind of super-stare and probably a majority of the Senate right decisis." now." In other words, even if the idea of superprecedent becomes widely accepted by And many liberal scholars also concede that senators, judges and legal scholars, there Roe and Casey may not qualify as a will be no end to the debate. The question of superprecedent, because the abortion what decisions qualify as a superprecedent decisions continue to be hotly contested. would keep the lawyers busy for years to come. "To me, a bedrock precedent commands a

489 "Supreme Confusion"

The New York Times April 26, 2007 Charles Fried

In supporting John Roberts's nomination to in 2000, in a similar case, the Supreme be chief justice of the United States in 2005, Court struck down a Kansas partial birth I spoke to the Senate Judiciary Committee abortion ban. The Kansas law was of his commitment to clarity. consistency unacceptably vague, but the principal reason and stability in the law-qualities that for the court's earlier decision was that there included respect for precedent, essential if was responsible medical opinion that the Supreme Court is to be the guarantor of sometimes the procedure was less risky for legality under the Constitution and not an the mother, and therefore in such cases the unnecessary third political branch of ban posed an undue burden. The federal ban government. Senator Dianne Feinstein of cured the vagueness, but sought to overcome California asked whether I thought a Justice the medical testimony by a legislative Roberts would vote to overrule Roe v. Wade. proclamation of a fact that is not a fact: that I said I thought he would not, at least not in the procedure was never safer for the its later, less absolute version embodied in mother. the 1992 Casey decision, which protected against governments imposing an "undue The decision is disturbing because the court burden" on a woman's right to choose has on numerous occasions refused to allow abortion before the fetus's viability. I told Congress to overturn constitutional law by Senator Feinstein that the formulation, and bogus fact finding, notably in decisions the principles behind it, had become so invalidating the Violence Against Women deeply rooted-in the law relied on not only Act (which Justice Kennedy joined) and the in abortion cases but by analogy in matters Religious Freedom Restoration Act (which as widely disparate as the Texas homosexual Justice Kennedy wrote). It's disturbing sodomy case, compelled visiting rights for because Justice Kennedy fails to come to grandparents and the right to die-that its grips with his own jurisprudence, going so abandonment would produce the kind of far as to say that because Congress was violent unsettling of the law against which acting under its power to regulate interstate respect for precedent is meant to protect. commerce, it needed only a rational basis to justify its decision. Where a fundamental The next year, when I testified in support of right is involved, such an explanation is Samuel Alito. Senator Feinstein asked me evidently wrong. the same question. I gave the same answer. It's also disturbing because Justice Kennedy Justice Anthony Kennedy's decision for the was not quite willing to embrace his own court in the abortion case last week does not conclusion. He suggested that perhaps as change my mind, because the procedure that applied in a particular case in which there was banned, intact dilation and extraction. is was an increased health risk the ban might too rarely used and its importance too be unconstitutional after all. What can that dubious to make much difference. Still, this mean? The very complaint here was that the most recent decision is disturbing, because ban was unconstitutional because it applies

490 in just such situations. Does the court she had earlier agreed to or even proclaimed contemplate a surgeon pausing in the midst on affirmative action and campaign finance. of an operation in which he determines the The first issue has been argued and will be banned procedure might be less risky, and decided this term of court; campaign finance seeking a court order? is being argued this week. If the justices eliminate the confusion and restore principle Finally, the decision is disturbing for a more in those areas, the cry will go up that the far-reaching reason: there are indeed cases court is simply reflecting its changed where the court in the last few years had political complexion, not reasoning carefully become truly incoherent, largely as a result and promoting stability and clarity in the of Justice O'Connor's pragmatic and law. And last week's decision will lend underexplained abandonment of positions plausibility to that charge.

491 "Supreme Humility"

The Wall Street Journal July 2, 1997 Michael W. McConnell

Last week's assisted suicide decision rooted in the will of the people and in reflects the U.S. Supreme Court's restored principles that have stood the test of time. commitment to decentralized democracy. By declining to find a right to assisted Rather than attempting to impose its own suicide, the court does not purport to resolve nationwide solution to difficult and the question. but simply "permits this debate contentious questions of moral and social to continue, as it should in a democratic policy (as it did in the abortion cases), the society." court seems to have realized that in the absence of clear direction in our Although the court was unanimous in constitutional text or history, it is better to declining to find a right to assisted suicide, allow the people and their elected four of the justices wrote concurring representatives to wrestle with these opinions in which they said they would problems. reserve a larger role for judicial discretion. But with the sole exception of Justice John This reflects a return to humility, after Paul Stevens, all expressed healthy several decades in which the court seemed skepticism about the competence and to view its job as second-guessing the legitimacy of the judiciary in making social wisdom of democratic judgments. Last week policy. Justice Sandra Day O'Connor (who the justices expressly recognized that other joined the majority opinion) made the telling institutions in our society often are better observation that "every one of us at some positioned to resolve important issues of point may be affected by our own or a principle. The justices took off the robes of family member's terminal illness," and the philosopher king and donned the more legitimate when the rights of a discrete humble garments of judges in a democratic minority (like blacks in the Jim Crow South) society-deciding cases according to are at stake. But when the people of the constitutional norms established by the states decided to restrict assisted suicide, people over time, rather than according to they were not imposing their will on a what they candidly called "the policy minority. They were legislating for preferences of the members of this Court." themselves and their loved ones.

Writing for a five-justice majority, Chief Justice David Souter emphasized that the Justice William Rehnquist explained that case turned on the relative "institutional when the court declares a new constitutional competence" of legislatures and courts. "right," it places the matter "outside the When the consequences of recognizing a arena of public debate and legislative new right are unknown, legislatures have the action." This is legitimate only when the advantage both of superior fact finding and asserted right is based either on explicit of the ability to experiment. It seems the constitutional text or on the "history and justices have learned something from their tradition" of the nation. This cautious experience with the abortion cases. approach ensures that constitutional law is

492 The great institutional strength of courts is must be based on constitutional principle their ability to enforce legal principles with and not on prudential compromise, it is consistency. treating like cases alike difficult to limit a new right once it has been regardless of the temper of the times. But recognized. The plaintiffs challenging the that virtue becomes a vice when principles New York assisted suicide law maintained are in flux and the consequences of new that there is no real difference between approaches are unpredictable. Constitutional allowing patients to forgo lifesaving medical judicial review is too inflexible a process to treatment (which is allowed) and allowing deal with an issue like assisted suicide. their doctors to prescribe affirmative measures to bring about death (which is There are four characteristics of the federal forbidden). The court correctly held that the judiciary that make it a poor-and distinction between killing and letting die is dangerous-social-policy maker. First, any reasonable and legitimate. But if it had gone answer imposed by the courts in the name of the other way, where could it stop? On what the Constitution will apply across the nation. principled basis could the "right" be denied Perhaps that makes sense when our national to competent patients who face the prospect experience points to a single answer. But on of extreme pain not just for a few months a novel and complicated social question like but for many years? How could assistance the treatment of the terminally ill, it would be limited to those physically capable of be foolhardy indeed for nine people sitting administering the lethal poison to in a courtroom in Washington, D.C.., to write themselves? Why limit the right to people in the rules for everyone. There is no reason to physical pain? Why not those distressed at think that every state must have the same the prospect of the loss of memory or laws pertaining to end-of-life decisions; and mobility, or of a loved one? And don't we can all learn from the experience of patients out of their minds with pain, or in a states with different policies. coma, need this help more than anyone? (So much for the requirement of voluntariness.) Second, constitutional decisions are difficult Once assisted suicide is recognized as a to change, even when mistaken. The constitutional right, it is difficult to see how legitimacy of the constitutional system the right could be confined to a narrow class depends on its stability: It strains public of patients-just as, once the right to credulity that the meaning of the abortion was recognized, it proved difficult Constitution would change rapidly and to limit it in any serious way. often. By contrast, legislatures can try new approaches, and then modify or abandon Fourth, the Supreme Court is the most them in light of experience and criticism. unrepresentative body in our governing The state of Oregon has undertaken an structure. All its members are from a single experiment in physician-assisted suicide profession; they are deliberately insulated that-however misguided it may appear to from ordinary people. They rarely have many of us-will cast light on the practical experience in the matters about which they consequences. Other states may try other adjudicate. They are very busy (deciding approaches. To treat this social-policy around 100 cases every year), and have question as one of federal constitutional law relatively little time for study and reflection. would cut short this process. They rely on arrogant kids just out of law school for information, counsel and Third. because any lines drawn by courts assistance. By contrast, now that the

493 question of assisted suicide has been left to "meretricious," "ludicrous" and "nihilist." the states, a much wider range of voices will He praised his court's own opinion as "more be heard-in churches and synagogues, enlightened." The Second Circuit declared legislative halls, radio talk shows, hospital there was no "rational basis" for allowing ethics committees, jury rooms, learned refusal of life-sustaining care but prohibiting journals and less-learned ones, within assisted suicide-never mind that this is the healthy families and families in pain. position of almost every U.S. state and Sometimes, the best and most peaceful almost every nation in the world, as well as solution to a contentious moral conflict is professional associations of doctors, not to adopt a sweeping principle and reject psychologists and experts in the care of the the other position, but to construct a elderly. compromise that allows each side to believe that society is responsive to its deeply held It is far from clear that federal judges are convictions. Legislatures are good at that. more "enlightened" and "rational" than the rest of us. And it is refreshing to see the It takes a special kind of hubris for judges to Supreme Court exhibit the humility that the think they have the best answers to social lower courts so conspicuously lacked. The problems about which knowledgeable court's majority says that "in every due people of good will do not agree and we process case" where our constitutional text have no national experience to guide us. and history are silent and our national Judge Stephen Reinhardt of the Ninth experience provides no clear answer, it Circuit U.S. Court of Appeals, who intends to allow the democratic processes of announced the right to assisted suicide last the 50 states to prevail. That will be a very year and was reversed last week, described great improvement over the preceding the arguments of those who favor legal decades of judicial overreach. restrictions on assisted suicide as "cruel," "untenable," "disingenuous and fallacious,"

494 "The Assault on Faux Judicial Restraint"

SCOTUS Blog June 25. 2007 Lyle Denniston

Now and then, a foctnote in a Supreme (06-970) is the latest example of the Court's Court opinion is so provocative, so moving away from major precedent without perceptive, or both, that it speaks almost as actually saying explicitly that the prior loudly as the body of the opinions ruling was being set aside. The Chief Justice themselves. In the election campaign ads has talked with some fervor about the value ruling on Monday, Justice Antonin Scalia of respecting precedent, and the need to unleashes this broadside at the main opinion, keep overrulings to a minimum, if not truly written by Chief Justice John G. Roberts, Jr.: rare. But the new conservative majority on the Court is plainly uncomfortable with [T]he principal opinion's attempt some of the precedents it confronts-and the at distinguishing McConnell [v. McConnell decision was a prime candidate FEC] is unpersuasive enough, and for overruling. In fact, both sides in the case the change in the law it works is had been granted additional space in briefing substantial enough, that seven to argue whether it should be cast aside. Justices of the Court, having widely divergent views concerning In the end, all that the Chief Justice's the constitutionality of the opinion would say on the point was that "we restrictions at issue, agree that the have no occasion to revisit" the McConnell opinion effectively overrules decision as it applied to federal regulation of McConnell without saying so. This broadcast ads aired by corporations and faux judicial restraint is judicial labor unions in election season. But what obfuscation. remains of that aspect of the 2003 decision divided the Court deeply in the various Aside from the substance of the remark, it is writings on Monday. And the end result is especially noteworthy because it is a direct that, if it is hanging on, it is just by a thread. assault on the version of judicial modesty that seems to be-at least at this early stage In fact, the numbers show how vulnerable it of the "Roberts Court"-the decision- is: three Justices wanted to overrule it making style that the new Chief Justice has outright, Justice Samuel A. Alito, Jr.. is so often advocated publicly. (Perhaps also to revealed to be strongly tempted to do that be left aside is that Justice Scalia himself when and if the issue comes back again, and joined earlier in the Term in a ruling by the the Chief Justice's tolerance of it as a Court, in the partial-birth abortion precedent is fleeting at most. The only thing decision-Gonzales v. Carhart-thatcan be that might keep that part of McConnell on read as having overruled precedent without the books, technically not overruled, is that sayimg so.) the Chief Justice's new opinion could make it entirely unnecessary to do so-the The Chief Justice's opinion in the combined campaign ads will flow freely in the weeks cases of FEC v. Wisconsin Right to Life (06- closest to elections, with full First 969) and McCain v. Wisconsin Right to Life Amendment protection, unless they leave no

495 doubt that what they really say is "vote for D. Any public policy issue it discusses, Jones" or "vote against Smith." Those who while naming a person who happens to be a draft campaign ads' content will have no candidate that season, need not be a live trouble avoiding such blatant advocacy and issue in public debate at the moment. yet leaving no one in doubt which outcome is preferred by the ads' sponsors. E. If a given ad is challenged in court as being over the specified line, a court may The Chief Justice's opinion has these central allow only minimal inquiry-if any at all- parts: into the nature of the ad and whether it does cross the line. If there is any dispute about A. The First Amendment protects a that, the ad and its sponsor "must be given campaign ad on radio, TV, cable or satellite the benefit of the doubt." outlets by a corporation and labor union using its own treasury funds, unless no However permissive that formulation may reasonable person, seeing or hearing that ad, be in actual practice, it is clear that it is would interpret it "as an appeal to vote for considerably more tolerant than almost or against a specific candidate." anyone contemplated at the time the McConnell decision came down. In fact, a B. The intent of the ad's sponsor is not to be respected U.S. District Court, after considered, no matter what other activities McConnell, had interpreted that decision to the sponsor may have carried out that mean that election season ads had simply revealed its true preferences. The focus of been banned, if paid for by corporations and any inquiry into an ad's legality under the labor unions out of their own treasuries, and new standard is just what the ad says-its there was no way they could be challenged a actual words and pictures-without regard case at a time. to any outside indications of what was intended. Last Term, the "Roberts Court" said that was a misreading of McConnell, and set the C. The ad can be run as close to election stage for the as-applied challenge that time-primary or general election-as the resulted, on Monday, is what appears to be sponsor wishes. more in reality than an as-applied ruling.

496 "The Roberts Court and the Role of Precedent"

NPR Morning Edition July 12, 2007 Nina Totenberg

For decades conservatives have yearned for assigning some students to schools. control of the U.S. Supreme Court. For decades, they have been frustrated in In each of these decisions, the key votes in the achieving that goal, despite having as many as majority claimed to be adopting a modest and seven Republican appointees on the court. limited approach. "What we actually have is a pretty bold conservative agenda but it's This term, though, conservatives seem to have clothed in the gentle language of traditional reached the promised land. With new Chief modesty and restraint," says Kathleen Justice John Roberts at the helm and Justice Sullivan, director of the Stanford Law Samuel Alito replacing justice Sandra Day Constitutional Law Center. O'Connor, the direction of the court for this term, at least, has been transformed. Or, as Stanford Professor Pam Karlan puts it, "I think, practically, the court has overruled a For conservatives, this term was pretty close number of cases. But the chief can say with a to the best of times, and for liberals, it was straight face, 'I didn't vote to overrule it. I pretty close to the worst of times. Although simply limited the earlier decisions to its Roberts and Alito both promised at their facts, or I refused to extend the earlier confirmation hearings to honor precedent decision."' whenever possible, in their first full term together, they effectively reversed a number The court was more polarized than at any of key precedents. In each case, it was by a 5- time in recent memory, with fully one-third of to-4 vote. the court's decisions reached by a 5-to-4 vote, and the liberals spoke with an unusually The court upheld a federal law banning so unified voice in dissent. As Justice Stephen called partial-birth abortions, though it had Breyer put it in the school desegregation case: struck down a nearly identical law just seven "It is not often in the law that so few have so years ago. The court effectively eviscerated a quickly changed so much." key provision of the McCain-Feingold campaign finance law, even though the court The court's new swing justice, Anthony had upheld that provision just three years ago. Kennedy, was in the majority in each of the 24 5-to-4 rulings. And Supreme Court scholar In employment discrimination, the court Tom Goldstein says Kennedy's influence has dramatically limited the ability of workers to been significant. "No justice has had so strong file employment discrimination claims. an influence on a Supreme Court term in at least 40 years," says Goldstein. "When you On school desegregation, the court limited the talk about the raw number of decisions where ability of school boards to adopt voluntary he dissented, only twice, or the 5-4 decisions desegregation plans that use race as a factor in where he was never in dissent, it was

497 unquestionably Justice Kennedy's term and it of the conservatives and some of the liberals looks like it's Justice Kennedy's court." that the minimalists as it were are being less than forthright in what they're doing," she Yale Law School Professor Akhil Amar says says. Kennedy is the linchpin. Ted Olson, who served as solicitor general in "John Roberts presides but Kennedy pivots," the first Bush administration, says Scalia is says Amar. Notre Dame Law School worried about not solidifying the new Professor Rick Garnett says Kennedy's role is conservative approach while he can. "I think clear. "Justice Kennedy sees himself as the he's looking into the future, who's going to be justice who is mediating between these two the next justice on the court and how will that increasingly polarized ways of understanding change the balance and if the court doesn't do the constitution and seems to me that he is away with precedents that he thinks are likely to be relishing it," says Garnett. unacceptable and wrongly decided they're going to be around to bite him later on," But all is not peace and love on the Olson says. conservative side of the court. Justices Antonin Scalia and Clarence Thomas, in a But Columbia Law School Professor Michael number of cases, wanted to go farther than Dorf, a former Kennedy clerk, says that Roberts and Alito. In the campaign finance Justice Kennedy, who so often cast the case, Scalia accused Roberts of effectively pivotal, fifth vote, is more temperamentally in overruling the court's past decision without tune with the more modest approach. saying so. This faux judicial restraint, said Scalia, is judicial obfuscation. "Part of what you're seeing may be that he finds Roberts and Alito less scary than "Justice Scalia is saying in his opinion that Justices Scalia and Thomas because they the chief justice's modesty, his unwillingness aren't bomb throwers, and it's possible that to overturn these longstanding precedents is the Roberts strategy of incremental moves actually phony. That he's not being honest and not acknowledging when he's overturning about how conservative he is," says precedents is appealing to Justice Kennedy," Goldstein. says Dorf.

Sullivan says Scalia and Thomas have a very What's more, says Goldstein, conservatives different approach from Roberts and Alito. still win in the end. "The differences between "It's as if Justices Scalia and Thomas would the conservatives don't amount to a hill of like to come in and blow things up. And Chief beans. It's all about theory, in practice five Justice Roberts and Justice Alito take some of justices on the right agreed on the result and these old precedents, and, instead, they chip were willing to change the law in the away at the foundations. so that they'll blow direction the thought it had to go," says over in a strong wind, but it's a very different Goldstein. approach." No case better illustrates that than the George Mason University Professor Neomi abortion case. Not only are states now fieer Rao is a former law clerk for Justice Thomas. than before to regulate abortion, many "There's an agreement perhaps amongst some observers note how the court's emphasis has 498 changed dramatically, from the doctor and the on a judge's order to file the appeal within 17 patient, to the unborn child. days, instead of the 14 days in the statute. The judge had erroneously factored in the George Annas, chairman of the Department of weekend in setting the deadline. Health Law, Bioethics and Human Rights at Boston University, contends that, until this The court's five-justice majority overruled a term's abortion decision, most scholars line of previous decisions, to say there should considered the doctor-patient relationship to be no flexibility when such errors be protected in some fundamental constitution inadvertently occur. "These results strike me sense. "That as long as physicians were as simply mean, in that they enforce a kind of practicing for the best interests and health of strict letter of the law approach, with out any their patients, with their patients' informed obvious benefit. This struck me at least as consent, and consistent with good medical something out of a Dickens novel, or perhaps practice, the government could not interfere even Kafka," says Dorf. That echoes what the with that relationship. That no longer is the four, liberal dissenters said in many cases, but law," says Annas. they did not prevail.

In many cases this term, the court's majority At his confirmation hearing, Roberts said he did not rule on the merits of a case, but ruled viewed the role of a judge as that of an that individuals had no right to be in court. umpire, to call balls and strikes. "One of the For example, the court, by a 5-to-4 vote, ruled most famous umpires in major ball history, that taxpayers could not challenge the Bill Klem, was once asked, 'Was that a ball or president's faith-based initiative in court. a strike,' and he said, 'You know, it's not a ball or a strike until I say it is.' So this idea of One small case that many scholars consider the umpire as someone who just follows a emblematic of the court's new formalism was rule book, has been kind of exploded this a ruling that a convicted defendant had lost term," says Karlan. his right to appeal because his lawyer relied

499 Excerpt from "The Power of Precedent"

The following is an excerpt from Chapter 4 in Professor Michael Gerhardt's book, "The Power of Precedent," Oxford University Press, forthcoming 2007.

The meaning and value of precedent implications of subsequent uses of depends on how subsequent justices precedents by analyzing their network construe it. For instance, the justices who effects. When we study network effects, we decided Korematsu v. United States and find that the values of precedents-their Brown did not frame either decision with significance in constitutional law-increase affirmative action in mind. Yet, in Adarand the more often they are cited. Conversely, and Croson, a majority of justices relied on the values of precedents decrease the less Brown and Korematsu for the proposition often they are cited-or the more often they that all race-based classifications must be are criticized. So, for example, Brown's subjected to strict scrutiny. value as a precedent has increased with the frequency with which it has been approving Similarly, in striking down voluntary cited by not only the Court but also other desegregation plans in Seattle and constitutional authorities. Moreover, we can Louisville, the Roberts' Court's majority expect the value of Korematsu to drop relied on Brown for the principle that nearly dramatically based on how rarely it is cited all race-based classifications, no matter how and even then without approval. benign they purport to be. are illegitimate because they are motivated by, or reflect, the In their recent network analysis of same racial attitudes which the Fourteenth precedent, social scientists James Fowler Amendment purportedly was designed to and Sangick Jeon reached several eliminate from public decision-making. It conclusions with implications for both the did not matter that Brown had not clarified attitudinal model and the golden rule of the level of scrutiny it had employed or that precedent. They found by the early 20t Korenatsu plainly had involved a race- century "the norm [of stare decisis] had based classification directed against a taken hold, even though there is strong relatively powerless minority. Nor did it evidence that the activist Warren Court later matter that a minority of the Roberts Court deviated from it. Later Courts also tended to claimed that a more coherent, honest reading skip over the decisions of the Warren Court, of Brown supported, rather than reaching back in time to rulings that were undermined, the voluntary desegregation more firmly rooted in precedent." plans in Seattle and Louisville. What mattered was how subsequent justices Of even greater significance is their finding construed either Brown or Korematsu. The "that reversed cases tended to be much more ultimate meaning of a precedent, what it important [or salient] than other decisions, ultimately comes to signify, depends in part and the cases overrul[ing] them quickly on how justices construe what their become and remain . more important as predecessors did. the reversed decisions decline. We also show the Court is careful to ground Social scientists and legal scholars study the overruling decisions in past precedent, and

500 the care it exercises is increasing in the authorities. Presumably, a precedent's importance of the decision that is values increase the more often it is overruled." These findings are more approvingly cited by judicial and/or non- significant because they indicate the Court judicial authorities. Moreover, non-judicial avoids repetitive overrulings or tends to authorities produce precedents, whose limit the numbers of times it revisits meanings or values depend, in turn, on the previously litigated questions of frequency with they are approvingly cited by constitutional law. The Court tends not to courts or other institutions. Second, repeatedly re-open issues, regardless of citations are not fungible. Contrary to what justices' ideological preferences or the some lay people and even some social salience of issues. scientists believe, not all precedents are created equal. Some end up mattering more There are, however, phenomena which the than others, and there are practical limits to study of network effects neglects. First, the the purposes for which public authorities network effects of precedent extend beyond cite either their own or judicial precedents. courts. If the meanings or values of As the next two chapters demonstrate, non- precedents depend on their frequency of judicial authorities are instrumental in their citation, we should measure how-and shaping the values, meanings, and how often-it is cited by non-judicial endurance of precedents.

501