August 15, 2007
Stare Decisis: Eight Recent CasesBy Clarice Feldman
The recent claims that newly-confirmed Chief Justice Roberts and Justice Alito were ignoring precedent, contrary to their confirmation hearings pledges, are partisan chum hurled into the waters where swim the most radical members of the Democratic base.
I have earlier examined the general scope of the doctrine of stare decisis which requires Supreme Court Justices to give great weight under appropriate circumstance to prior rulings of the Court and to the statements both Justices gave on the issue during their confirmation hearings for American Thinker readers.
Now, I will look at the eight cases which Justice Breyer apparently referred to when he suggested to Senator Specter that these new justices were not paying adequate attention to the doctrine. I find no basis for such a charge in any of these opinions. Westlaw (type in the name and citation here) to which I have cited, has a headnote system which permits you to see summaries of each case and is not so complicated. An average reader can certainly comprehend these decisions without legal training).
Each of these cases was decided by a divided court, so there are majority opinions, dissenting opinions, and often concurring opinions in which one or more judges agreed with the outcome but not some or all of the reasoning in the majority opinion.
My discussion of each is brief-just enough to show you why I think Justices Roberts and Alito's views in each were perfectly consistent with the recognized parameters of the doctrine of stare decisis I've already described and with their statements during their confirmation hearings.
Here are the cases:
Bell arose as a class action suit against a local telephone and internet service, alleging an anti-trust conspiracy in violation of the Sherman Act. The question before the Court was How serious must the plaintiff's allegations be before proceeding to discovery, a process which is lengthy and costs defendants a great deal of money.
Judge Souter wrote the opinion with which Justices Roberts, Scalia, Kennedy, Thomas, Breyer and Alito joined. Justice Stevens dissented and Justice Ginsburg joined in that opinion in part.
The plaintiffs alleged parallel conduct on the part of the defendants, conduct which could have been motivated by economic self-interest, and did not even allege facts suggestive of illegal conduct-that is, they did not even allege there was any actual agreement between the defendants.
Judge Souter distinguished this from an earlier case which suggested that the complaint should not be dismissed at this stage unless there is no set of facts upon which the defendant can prevail. He did so because that language was too broad to fit the case in which it arose-a case he said in which there were concrete allegations of wrongful doing and because the quoted language of that opinion was "an incomplete, negative gloss on an accepted pleading standard."
This case arose on a petition for habeas corpus and a motion for a new trial. The question was whether the Court should continue to recognize the "unique circumstances exception" to excuse an untimely filing of a notice of appeal. Justice Thomas wrote the majority opinion in which he was joined by C.J. Roberts and Justices Scalia, Kennedy and Alito. Justice Souter wrote the dissent in which Justices Stevens, Ginsburg and Breyer joined.
This case does not involve local court rules as to which the courts have flexibility to prevent inequities, but rather the Rules set by Congressional enactment. The late filing was the result of a clerical error by the Court below.
Justice Thomas noted that for over one hundred years, there has been ample precedent that the filing of an appeal within the time prescribed by Statute is "mandatory and jurisdictional." He further noted that while the dissent relied on such careless use of the term "jurisdictional," in some other cases, the jurisdictional significance (even in those cases) of a statutorily set time limit had been accepted. Thomas wrote:
As he observed, if Congress believes strict adherence to the time limits set by Congress is inequitable, it can change the rules.
Federal Election Commission
In this case a non-profit advocacy group sued, alleging that the "electioneering communications" provision of the Campaign Finance Reform Act violated the First Amendment because it barred broadcasts of its issue advocacy ads shortly before the state's primary and general federal elections.
Chief Justice Roberts wrote the majority opinion. Justice Alito wrote a concurring opinion. Justice Scalia wrote a separate opinion concurring in part and concurring in the judgment. He was joined by Justices Kennedy and Thomas. Justice Roberts wrote that the statutory prohibition of issue ads in the period shortly before elections violated the group's free speech rights.
The question respecting precedent was whether the Court's earlier opinion holding the Act facially constitutional barred an as-applied case like this. That is, even if one could find a reasonable interpretation of the Act under which it could be constitutional, was the Court barred from considering cases where its application to a given set of facts was unconstitutional.
The majority opinion said the earlier case (McConnell) did not adopt any test for future as-applied challenges, but was limited to the evidentiary record in that case. Nor did McConnell overrule yet a third case which rejected a test for distinguishing between discussions of issues and candidates. In fact, as Roberts observed, McConnell didn't even address the matter.
On the substantive issue Roberts said to safeguard freedom of speech the Court had to give the benefit of any doubt about the challenged communication to protecting free speech and should find it the "functional equivalent of express advocacy" banned in the immediate election period by the Act "only if the ad is susceptible of no reasonable interpretation other than as an appeal for a vote for or against a specific candidate."
In his concurring opinion Justice Alito said because the Court found the Section of the Act unconstitutional as applied in this case it was unnecessary to go further but added,
This case arose as a challenge to the constitutionality of the Partial Birth Abortion Ban Act of 2003. The Act was upheld in an opinion written by Justice Kennedy with whom C.J Roberts and Justice Alito joined. Justice Thomas filed a concurring opinion in which Justice Scalia joined. Justice Ginsburg dissented joined by Justices Stevens, Souter and Breyer.
In an earlier case (Stenberg), the Court found that the Nebraska law banning this procedure was unconstitutional, Congress then held hearings, made factual findings and passed a similar but not identical Act. Was this Court bound to the earlier decision based on other facts and a State law which was not identical? The Court held that it was not.
Justice Kennedy noted that in the first case it was bound by the factual record developed in the District Court. Congress, however, was not, and found on the basis of its investigation that the practice, repugnant to it, was never medically necessary. Congress also used different definitions than Nebraska did. Thus, neither the facts nor the law compelled the same result in the two cases.
In Gonzales, the holding was that the respondents had not demonstrated that as a factual matter the Act was void for vagueness or that it imposed an undue burden on a women's right to an abortion because of statutory overbreadth or because it lacked a provision excepting the ban when necessary to protect the health of the mother.
Since there was medical uncertainty as to whether such an exception would be needed, and because there was the right to raise that issue in any case in which it arose, the proper way to deal with it, the Court held, would be, when and if such an eventuality ever occurred.
The Court noted disapprovingly that in some earlier cases the Court had departed from the canon that "reasonable construction must be resorted to in order to save a statute from unconstitutionality" and had taken an antagonistic view under which a "permissible reading of the statute was to be avoided at all."
In sum, in perfect accord with the separation of powers, if a statute is genuinely susceptible of two constructions, one of which makes it constitutional, that is the construction the court should adopt. If in some future case the reading proves inconsistent on its facts with the Constitution, the parties are free to raise that issue, but until that case arises, the Statute will be presumed constitutional.
It's hard to seriously believe that Congress is opposed to such a long-standing rule which properly applied, gives due recognition of Congressional powers under the Constitution. Instead, one must consider whether those Senators who opposed the Act hoped the Court would give them the victory denied them on the floor of the Congress.
In Ledbetter a female retiree sued a former employer alleging sex discrimination claiming her poor performance ratings earlier had resulted in lower pay than her colleagues through the end of her career. The question before the Court was the time within which the complaint had to be made for damages to accrue.
Justice Alito wrote the opinion, joined by C.J. Roberts, Justices Scalia, Kennedy and Thomas. Justice Ginsburg wrote the dissenting opinion in which Justices Stevens, Souter and Breyer joined.
Justice Alito noted that statutes of limitation (statutes which set cut off dates for the filing of claims) put an adversary on notice to defend within a specified period of time. The complainant here claimed the discrimination occurred in the late 1980's and into mid-1990, and by the time of the trial the person she claimed had harassed her was no longer alive to testify. The relevant provision in Title VII says the complaint must be filed within 180 days after the alleged unlawful conduct and that a new violation doesn't occur and a new charging period doesn't begin upon the concurrence of non-discriminatory acts that entail adverse effects. No discriminatory conduct occurred during the charging period and the complainant never claimed that the earlier discriminatory conduct wasn't communicated to her. Since the Court could find no provision for special treatment of her claim in either the Statute or in prior precedent her claim was denied.
In this case a retailer sued a manufacturer alleging its policy of setting a minimum price retailers could charge violated the Sherman Act. Justice Kennedy wrote the majority opinion in which C.J. Roberts, and Justices Scalia, Thomas and Alito joined; Justice Breyer wrote the dissenting opinion which was joined by Justices Stevens, Souter and Ginsburg.
In this case, an older case which held that applying vertical resale prices was a per se violation of the Sherman Act was explicitly overruled. That case (Dr. Mills) was decided in 1911 and was based on a 1628 treatise which became part of the common law 400 years ago. In matters other than price, since that time the Court has abandoned a per se rule for other vertical restraints; respected economic analysts concluded that vertical price restraints do not necessarily have an anti-competitive effect, in fact, they can enhance competition to the benefit of the consumer.
Accordingly, since the passage of time and the erosion of the per se rulings on vertical restraints and the new information before the court since 1911, the Court held that the 1911 case holding such agreements were per se unlawful should be overruled and all such restraints decided on a rule of reason.
The majority opinion observed that the Court has always treated the Sherman Act as a common law statute.
In this line of cases the Dr. Mills case was, in fact, eroded by subsequent Court precedent; the original case was decided so early when the Court had little experience with anti-trust analysis and since the Court has "continued to temper, limit or overrule once strict prohibitions on vertical restraints", it is inconsistent with those cases to continue to follow Mills. In fact, it hinders competition and consumer welfare to do so.
As to the claim that since the case was of such long standing and engendered reliance it should not be overruled, the majority opinion responds it
In this case the Court held the First Amendment wasn't violated by the suspension of a high school student for waving a banner reading "Bong Hits 4 Jesus" off campus at a school sponsored event.
C.J. Roberts wrote the opinion of the court in which Justices Scalia, Kennedy, Thomas and Alito joined. Justice Thomas filed a concurring opinion. Justice Alito filed a concurring opinion in which Justice Kennedy joined. Justice Breyer wrote an opinion concurring in the judgment in part and dissenting in part. Justice Stevens filed a dissenting opinion in which Justices Souter and Ginsburg joined.
Chief Justice Roberts said of the dissent:
The substantive ruling was probably less significant than the procedural one which Justice Breyer suggested be adopted. He suggested the old test which required lower courts to first make the far more difficult judgment on the constitutional issue before resolving the much easier test of whether the government employee charged with the unconstitutional conduct had "qualified immunity" from suit. Under the "qualified immunity" test, courts must enter judgment in favor of the government employee unless that conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known. The new test is of a piece with countless other cases which resting on a notion of judicial economy decide only as much as they need to to resolve the issue before them.
The "change in the order of battle" as Justice Breyer referred to it, reversed the procedural rule in a 2001 case (Saucier) which as Roberts noted various judges had earlier taken issue with (citing Justices Stevens, Scalia, Ginsburg and Kennedy to the effect that the procedural requirement in that case was misguided).Indeed, in 1944 the Court itself had ruled (Spector Motor Service, Inc) the Court should "not...pass on questions of constitutionality....unless such adjudication is unavoidable."
In fact, Breyer observes were the case to be decided on the immunity question alone, the decision would be unanimous because the dissent conceded Morse had qualified immunity.
In sum, Justice Breyer's opinion argues for scrapping an existing case How does his opinion square with the stare decisis doctrine? Breyer answers for us:
This case involved the assignment of students in two public school districts (Seattle, Washington and Jefferson County, Kentucky) on the basis of race. Seattle never had legal segregation, Kentucky did but in 2000 a District Court dissolved the desegregation decree finding no vestiges of prior segregation to the highest degree possible. In Seattle the classification by race was used as a tie breaker to allocate slots to certain high schools In Kentucky the district classified students by race to make certain elementary school assignments and to rule on transfer requests.
Both school district plans were found unconstitutional and the opinion explains that one cannot set quotas based on race under any reading of the leading case permitting race to be a factor in law school admissions (Grutter). C. J. Roberts announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Parts III-B and IV, in which Scalia, Thomas, and Alito, JJ., joined. Justice Thomas filed a concurring opinion. Justice Kennedy filed an opinion concurring in part and concurring in the judgment. Justice Stevensfiled a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Stevens, Souter, and Ginsburg joined.
Interestingly, it is Justice Breyer‘s position which is attacked as inconsistent with precedent.
Chief Justice Roberts says, among other things, that Justice Breyer "selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial qualifications, and greatly exaggerates the consequences of today's decision."
At another point, Roberts says of Breyer, "The dissent thus alters in fundamental ways not only the facts presented here but the established law."
Having reviewed these eight cases, I can say the same thing of Senator Schumer and Leahy's criticisms of Roberts and Alito: Their suggestion that these Justices are not following precedent and misled the Judiciary Committee alters in fundamental ways not only the facts but the established law. In only one of these eight cases, Leegin, did the Court overrule a precedent, a case from the 1911 involving an anti-trust matter of very limited application which had been eroded over time by reason and practice, a long established,perfectly sensible, rationale for doing so.
Clarice Feldman is an attorney in Washington, DC.