August 06, 2007
By
Clarice
Feldman
Led by Senator Charles Schumer, Senate Democrats are trying to bamboozle the
American public into believing that Bush appointees to the Supreme Court are
dangerous radicals.
Senator Schumer's
suggestion
and Justice Beyer's unusual and inappropriate
complaint
to Senator Specter that the newest members of the Supreme Court -- Chief
Justice Roberts and Justice Alito -- are ignoring and overruling
established precedent is of a piece with the mandarinate's general and
untrue response to the Administration: the Mongols have taken over.
I have reviewed the law on stare decisis (the doctrine that
judges should rule in accord with past precedent to be sure that the
legal guidelines are predictable and non-chaotic). It is a doctrine
which has much to commend it, but it is often confused and confusing. I
have compared what Justice Breyer and Justices Roberts and Alito said of
the doctrine at their confirmation hearings and reviewed these eight
opinions which seem to have been the source of the charge:
- Bell Atlantic Corporation et al.,v. Twombley et al. 127 S.
Ct.1955;
- Bowles, v. Russell, 127 S. Ct. 2360;
- Federal Election Commission v. Wisconsin Right To Life, Inc.127
S.Ct.2652;
- Gonzales v. Carhart et al. 127 S. Ct 1610;
- Ledbetter v. Goodyear Tire, 127 S. Ct. 2553;
- Leegin Creative v. PSKS ,127 S.Ct. 2705;
- Mose v. Frederick,127 S.Ct. 2618;
- Parents Involved v. Seattle Schools,127 S.Ct. 2738.
As I will explain in greater detail in this and following articles, I
believe the charge is a false one, a pretextual one, in fact. It is the
substantive rulings which the critics dislike, not the legal
reasoning. The charge amounts to a bit of legerdemain aimed at a public
not familiar with the doctrine, a public whose principal source of
information about the Court and its rulings is a media unwilling or
unable to examine the charge on its merits. This one-two-punch by
Democrats and the media has created a distorted view among the public of
the Court's methods and rulings.
In other legal systems where the courts are all part of a national
system, the doctrine is perhaps more easily understood. In a federal
republic as ours is, it is slightly more complicated. Thus, a lower
court in the federal system is bound more closely to apply the law as
established by the Court of Appeals over it, and even more constricted
in departures from the rulings by the Supreme Court. Except on matters
of interpretation of state law, federal courts have little obligation to
pay any attention to State Court rulings in determining a later case.
But there is no need for much discussion on this interesting point as
the harder question and the one at issue here is the Supreme Court's
adherence to its own precedents.
But remember when reading a Supreme Court case, each ruling is based on
the facts before the Court, and those facts largely depend on the
presentation of the case in the lowest court where the matter originated.
That first court is the finder of fact and rarely overruled on such
findings, provided the opinion is not an irrational adjudication on
the record. It also depends on the skill of counsel -- an important
issue may have been overlooked by the petitioner, and the Court is
rather bound in its decision-making to what was briefed and argued
before it. The Supreme Court is not free to hold hearings and
make its own factual findings or to interject into the decision-making
process points of law not previously raised by the parties themselves in
a timely fashion. Despite all the confused and confusing explications of
when prior decisions should be followed, in the end whether the
subsequent ruling is correct or not depends largely upon a close reading
of the facts of both cases.
Factors weighing on the applicability of precedent
One factor to consider is whether the older ruling has held the test of
time. Is it in retrospect so irrational and creating so much chaos
itself that there is little reason to continue down that path?
Was the statement in the prior case which the Court is being urged to
follow, essential to the earlier ruling? Or was it obiter dicta
(often just referred to as "dicta"), an off-hand comment by one or more
judges on a matter that was irrelevant to the earlier decision and one
not fully briefed or argued? We have an adversary system in our courts
because we believe it provides the decision-makers the most complete
understanding of the issues and law. There is absolutely no reason to
give weight to a point of law which never was decided on the basis of a
thorough examination and debate.
Yet another factor to weigh is whether the decision is one regularly
relied on in ordinary business and property transactions such that any
departure from it would cause undue confusion and disruption?
And last but not least, of the things to remember when reading the
various Court statements on stare decisis, is whether the
original decision is a proper explication of the Constitution, the
primary law of the land.
These are not the only factors to consider in deciding whether to give
great weight to prior rulings, but they are significant ones and, as I
hope you can see, they are all perfectly logical -- although at times
different judges dispute the application of some of these principles in
any given case.
The Supreme Court does not automatically hear all appeals to it. Cases
which are chosen are usually on hotly contested difficult legal issues.
Often different Courts of Appeals have taken different views on the same
or closely related matters so that one could certainly expect that the
nine perfectly honorable and intelligent judges would see the matter
before them from far different points of view. And it is perfectly
understandable that new viewpoints are more likely with each change
of the composition of the Court. Given that, it is to be expected that
Justices Roberts and Alito, viewing matters as new justices, would on
occasion have a different perspective than those judges they succeeded
to the Court. But as I will show in a subsequent article, each and every
decision by them, in context, was supported by the long-standing
principles at the very heart of the doctrine that deference is due
(under appropriate circumstances) to prior decisions.
The final thing I'd like you to remember about stare decisis is
that the very doctrine itself is given far less weight with respect to
Constitutional issues than with respect to statutory or common law
decisions.
"Stare decisis is usually the wise policy, because in most matters
it is more important that the applicable rule of law be settled than
that it be settled right.... This is commonly true even where the
error is a matter of serious concern, provided correction can be had
by legislation. But
in cases involving the Federal
Constitution, where correction through legislative action is
practically impossible, this Court has often overruled its earlier
decisions. The Court bows to the lessons of experience and
the force of better reasoning, recognizing that the process of trial
and error so fruitful in the physical sciences, is appropriate also
in the judicial function." -
Burnet
v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932)
(Justice Brandeis dissenting).
[W]hen convinced of former error, this Court has never felt
constrained to follow precedent. In constitutional questions, where
correction depends upon amendment, and not upon legislative action,
this Court throughout its history has freely exercised its power to
reexamine the basis of its constitutional decisions. Smith v.
Allwright, 321 U.S. 649, 665 (1944).
Indeed, if precedent were always followed, among the rulings that would
still be in effect today are those that permitted slavery,
separate-but-equal treatment of citizens based on race and the forced
internment of Americans based on their national origin.
Should overruling an earlier opinion (based on a view that it misread
the Constitution) be less warranted if the opinion is very recent? I
agree with Justice Scalia, that such an approach is illogical. -Scalia
dissent
South Carolina v. Gathers, 490 U.S. 805,825 (1989):
Overrulings of precedent rarely occur without a change in the
Court's personnel. The only distinctive feature here is that the
overruling would follow not long after the original decision. But
that is hardly unprecedented.
See, e.g., Daniels v. Williams,
474 U.S. 327, 330-331 (1986) (overruling
Parratt v. Taylor,
451 U.S. 527 (1981));
United States v. Scott,
437 U.S. 82, 86-87 (1978) (overruling
United States v.
Jenkins,
420 U.S. 358 (1975));
West Virginia Board of Education v.
Barnette,
319 U.S. 624, 642 (1943) (overruling
Minersville School
District Board of Education v. Gobitis,
310 U.S. 586 (1940)). Indeed, I had thought that the respect
accorded prior decisions increases, rather than decreases, with
their antiquity, as the society adjusts itself to their existence,
and the surrounding law becomes premised upon their validity. The
freshness of error not only deprives it of the respect to which
long-established practice is entitled, but also counsels that the
opportunity of correction be seized at once, before state and
federal laws and practices have been adjusted to embody it.[/quote]
Former Justices Douglas and O'Connor's have expressed similar views.
Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949). Or as the
Court itself has said:
[W]hen convinced of former error, this Court has never felt
constrained to follow precedent. In constitutional questions, where
correction depends upon amendment, and not upon legislative action,
this Court throughout its history has freely exercised its power to
reexamine the basis of its constitutional decisions. -
Smith v.
Allwright,
321 U.S. 649, 665 (1944).
Once a law-abiding society has revised its laws and practices to
comply with such an erroneous decision, [p825] the existence of a
new "consensus" can be appealed to -- or at least the existence of
the preexisting consensus to the contrary will no longer be evident
-- thus enabling the error to triumph by our very failure promptly
to correct it.
Cf. Thompson v. Oklahoma,
487 U.S. 815, 854-855 (1988) (
O'CONNOR,
J., concurring in judgment).
Clarice Feldman is an attorney in Washington, DC
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at August 06, 2007 - 06:53:52 AM EDT