By Pejman Yousefzadeh Posted in The Courts — Comments (28) / Email this page » / Leave a comment »
AS he prepares for another Supreme Court confirmation battle, President Bush faces intense pressure to quell the uproar from social conservatives who feared that Harriet Miers was not a true strict constructionist.
Many conservatives say they hope that the new nominee will follow the lead of Justice Antonin Scalia and, even more, Justice Clarence Thomas, who has become a conservative hero because of his willingness to overturn many liberal precedents of the last 70 years, from Roe v. Wade to cases upholding the New Deal.
But social conservatives face a problem: a new theory of "superprecedents" that is gaining currency on the right as well as the left.
The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents - that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.
In response, Judge Roberts embraced the traditional doctrine of "stare decisis" - or, "let the decision stand" - and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.
If that is the case, Chief Justice Roberts would be at odds with the influential part of the conservative movement that argues that the Constitution should be strictly construed in accordance with the intention of the framers, regardless of the consequences. But the idea of superprecedents is more powerful than a simple affirmation of stare decisis. An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.
Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."
Before the Roberts confirmation hearings, Mr. Specter talked informally to several law professors, including this writer, who mentioned the theory of super-stare decisis, noting that Judge Luttig thought it was important that Roe had been repeatedly reaffirmed by different Supreme Courts, composed of justices appointed by presidents from different parties and confirmed by Senates controlled at times by Democrats and Republicans.
And Mr. Specter adopted this theory. At the hearings, he described their first courtesy call, in which he asked Judge Roberts about the theory of super-stare decisis.
During the hearings, Judge Roberts, who was serving on the United States Court of Appeals for the District of Columbia Circuit, declined to say whether he agreed that Roe was a superprecedent or even a "super-duper" precedent. But, he said, the Casey decision is itself "a precedent on whether or not to revisit the Roe v. Wade precedent." And he also noted that the court over the past 80 years had reaffirmed the idea that the Constitution protects a right to privacy.
Later in the Roberts hearings, Charles Fried, a prominent conservative legal scholar at Harvard, agreed explicitly that Roe was a superprecedent. As solicitor general under President Ronald Reagan, Mr. Fried had asked the court to overturn Roe. But testifying on behalf of Judge Roberts, he said that Roe had become a super-duper precedent that would not and should not be overturned, because it was reaffirmed in 1992 and extended in subsequent decisions protecting gay rights and the right to die.
"It's a big tree, but it has ramified and exfoliated," said Mr. Fried, and overturning it "would be an enormous disruption."
All of this would make you think that Rosen had an ironclad case to present regarding the existence of super-precedents. The problem is that when you look closely at the full Luttig quote, it isn't what Rosen made it out to be.
The Luttig quote comes from this case, and is somewhat more substantial than the snippet that Rosen presented:
I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. See Casey, 505 U.S. at 844-46 ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973), that defi- nition of liberty is still questioned. . . . After considering the funda-mental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to con- clude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, 2000 WL 825889, at *4 (June 28, 2000) ("[T]his Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992). We shall not revisit those legal principles.").
I will repeat here my earlier response:
. . . But I still don't know what makes a particular precedent achieve the status of "super stare-decisis." Does the case merely have to be reaffirmed a few times? Does it merely have to be reaffirmed once? What if it is reaffirmed a whole bunch of times and then overruled? Will "super-stare decisis" be thus found to have met its match in jurisprudential red kryptonite?
To be sure, we now have some kind of reference to what Senator Specter was writing about. But it still falls under the "haggis" category. The notion of "super stare-decisis" may be somewhat more plentiful in the legal literature than, say, the notion of a "Constitution in exile," but that's not saying a whole lot, is it? A few people at the most appear to have bandied about "super stare-decisis" and associated über-legal labels, but it hardly amounts to anything serious in the legal literature as a whole.
So perhaps it might not be a bad idea to dismiss this talk altogether. Specter did not make the reference up out of whole cloth, but from his commentary, one would think that there is some kind of "super-stare decisis" school of thought out there equivalent to strict constructionism, originalism, or even (stars help us) "the living Constitution." There is not. Not even close. At best, it is a fringe school of thought with paltry references in the legal literature. And that would tend to make it something of a red herring for the purposes of debate and edification, would it not? Additionally, lower court judges may very well find themselves bound by stare decisis, whether "super" or not. But Supreme Court Justices can take a different tack and have in the past--overruling cases that have been affirmed and reaffirmed over and over. Something that adds to my suspicion that "super stare-decisis" has little application to our discussion or to the resolution of various legal issues and problems.
And Ann Althouse has a response as well:
Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.
In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.
But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.
One can perhaps be forgiven for thinking cynically that all of this talk about "super-precedents" is designed to distract from an analysis of whether Roe or Casey are actually examples of good and sound reasoning (it should be noted that even many supporters of abortion rights believe Roe to have been poorly constructed). If so, it gives us extra cause and reason to wonder whether the concept of "super-precedents"--which again, is at best sparsely discussed in the literature--is an intellectually honest concept which can be afforded respect and deference.
Incidentally, the seeming Fried endorsement of the concept of "super-precedents" should be viewed with some suspicion given the seeming failure on the part of Jeffrey Rosen to properly interpret the Luttig commentary. Additionally, even if we assume that Rosen has Fried's commentary correct, the Court can certainly construct a decision that leaves intact its rulings regarding gay rights and the right to die, while at the same time recognizing that its rulings regarding abortion were improper and that the regulation or legalization of abortion should be left up to the states.