Stare Decisis: Not Quite What Senator Schumer Would Have You Believe

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).
In the years 1946-1992, the U.S. Supreme Court reversed itself in about 130 cases.  The Court has explained as follows:
[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
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).
In the years 1946-1992, the U.S. Supreme Court reversed itself in about 130 cases.  The Court has explained as follows:
[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