How Much Should Precedent Bind Judges?
Warren Richey explores the longstanding question, “How much should precedent bind judges?” in today’s Christian Science Monitor.
Whomever President Bush nominates to fill Sandra Day O’Connor’s seat on the US Supreme Court will inherit enormous power immediately upon confirmation. It is the power to assume Justice O’Connor’s role of breaking deadlocks in major cases. But perhaps more important, it includes the raw judicial power to overturn many of O’Connor’s decisions, should four other like-minded justices agree to take up the task.
With high-court opinions on affirmative action, school vouchers, states’ rights, and so-called “partial birth” abortion hanging in the balance, questions about the importance of upholding Supreme Court precedent will play a central role in upcoming confirmation hearings, legal analysts say. That is, in addition to dodging the usual inquiries about how he or she might rule in an abortion case, or other culture-war flash points, a Bush nominee will probably face a prolonged and intense interrogation probing a candidate’s views on stare decisis. Stare decisis is a Latin term for the judicial principle of upholding an earlier high-court decision unless special circumstances exist to overturn it. The phrase literally means to stand by things decided.
By tradition, a new justice who did not participate in earlier rulings is less bound by precedent than the justices who voted in those decisions. But there are risks every time the court authorizes an abrupt change of course. As Justice Potter Stewart wrote in a 1974 dissent: “A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government.” He added, “No misconception could do more lasting injury to this court.”
Upholding precedent fosters stability and predictability in the law. And it enhances the legitimacy of the court by demonstrating to the nation that the justices themselves accept and respect the court’s own opinions. On the other hand, if the high court adhered strictly to precedent, it would be unable to correct mistakes in constitutional interpretation, and future interpretation would only perpetuate the errors. For example, Plessy v. Ferguson, the 1896 case upholding “separate but equal” racial segregation, would have continued as the law of the land had the Supreme Court not overruled it in the 1954 landmark decision Brown v. Board of Education.
While stare decisis is at the heart of the Common Law system, it should not constrain Supreme Court Justices from reversing obvious error in Constitutional interpretation. The Constitution, not the body of Court rulings, is the supreme law of the land.
There may come a point where an incorrect reading of the Constitution is so engrained in our conception of the system as to become “settled law.” For example, the reasoning behind Marbury v. Madison (1803), which gave the Supreme Court the right to strike down acts of Congress, was incredibly thin. The gross expansion of the Commerce power in NLRB v. Jones & Laughlin Steel Corp. (1937), was rather plainly a departure from the text of the Constitution, not to mention 150 years of judicial rulings. Nonetheless, overturning those decisions at this juncture would radically restructure our system of government and would be unwise.
The privacy right, first announced in 1965, is much less central to our polity as it the offshoot right to abortion during the first two trimesters (later, until “viability”) announced in Roe in 1973.