College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2007 Section 8: Judicial Modesty Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 8: Judicial Modesty" (2007). Supreme Court Preview. 220. https://scholarship.law.wm.edu/preview/220 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.