By Pejman Yousefzadeh Posted in Comments (28) / Email this page » / Leave a comment »

Jeffrey Rosen--the same guy who tried so hard to popularize the "Constitution-in-exile" myth--is now working to popularize yet another myth; one about "super-precedents":

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.

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Super-Duper-All-Powerful-Precedents 28 Comments (0 topical, 28 editorial, 0 hidden) Post a comment »

I thought Cass Sunstein was the originator of the "Constitution in exile" conceit. I could be wrong.

Someone needs to "Double Dawg Dare" Rosen as to why Plessey doesn't fit his definition of "Super Duper Decoder Ring" precedent.  It looks to me like the "living Constitution" has metastasized.

I am glad to get this clarification.  I had read a number of references to Luttig's reference to "super stare decisis" stature as evidence of his ambiguity on what he might do on Roe.

this is, in my view, NOT, as they say 'dispositive'.  he is just, IMHO, making reference to what he feels the Court intended.  he is not endorsing the concept.  

of superprecedents may be accurate, but it looks to me like Luttig is saying exactly what Rosen attributes to him.

What I am hearing is that if Roe is reversed that 45 states(Max)-38 states(min) will go with legalized abortion.  What this means is that the minority anti abortion states will be pro abortion just like legalized gambling has forced anti gambling states to become pro gambling and states with 'loose' divorce requirements forced pro family states to loosen their divorce laws.  

Anti Abortion Federal law is a long shot.  

or if Roe survives in some form say LTA/{PBAs are forbidden, then the pro abortion forces will turn on the GOP with the result that the Dems will take power.

or are the cynics correct that anti Roe is a fund raiser for some groups, giving gainful employement to folks that promise votes to the GOP, but would be on the UE line if Roe went away.  This is not limited to the GOP; a simular situation exists on the left where a lot of politicians wish some solution could be reached and the pro abortion folks just show up on election day.  

The biggest effect of Roe is to banish the compromise solutions.

If Roe falls, it will not be a "ban all abortions" or "keep abortion legal until 15 seconds before birth" decision that Roe has made it.

Most states will add restrictions including PBA bans and parental notification/approval laws.

And a wide swath (I'd guess 20 or so) will outlaw third trimester abortions and maybe second trimester abortions.

A smaller group of 10 or so will restrict abortion to cases of rape, incest, and life of the mother.  I think this position will be the new default "moderate" position on abortion that most candidates will take.  It will also over time win over more states.

That's my analysis of the situation, FWIW.

Leaving everything else aside (I'm anti-Roe and pro-life, but it's not my top issue), the real truth is that, because of Roe, the United States has the most extreme abortion laws of virtually any place in the world - the only worse case in the developed world I can think of being Canada which, for various reasons, has no abortion laws at all.

If it was legislated, I think we'd probably end up (on average) allowing abortions in the first trimester and in cases of the incest, rape, and the life of the mother.


What I'd like to see is for some pompous senator to rise up in session and actually use the phrase "Super Duper Precedent".

It frankly sounds idiotic. the U.S. Constitution. I'd support any nominee who tells Senator Haggis that any case that wrongly inteprets the Constitution can and should be overruled. Let the Dems argue that the Constitution is wrong!

senator Haggis is a Republican (in name only)

When Specter first started talking about "super precidents", I knew the debate was over.

No one, apparently, is even trying to make a serious legal (Constitutional) argument for Roe. Instead, we have nonesense like a super-precident. The clock is ticking.

Its no doubt true that some on the Right would prefer that Roe survive because it serves as a perpetual tool for fundraising and for garnering votes from religious voters.  But the problem with such a cynical approach is that a pro-Roe judge is likely to be awful on most other social/cultural issues as well.

We see that with O'Connor and Kennedy, who have become increasingly liberal on social issues.  There is little doubt in my mind that both of those would vote to impose gay marriage/civil unions if given the chance.  

I know there is much speculation that Roberts will be a new type of Sup Court justice; i.e. one that would, for example, vote to uphold Roe, but who would not vote in similarly absurd manners on other issues to establish similarly absurd precedent.

I'll believe that when I see it.    

Not sure if you're being sarcastic.  If so, apologies.  If not, Specter used that terminology... and Roberts agreed with it.

Roberts didn't "agree."  He responded that Roe "is settled as the precedent of the court" to Specter's question about whether he thought "that Roe might be a super-duper precedent."

There is a great variance in abotion laws.  Still it appears that only 3 countries ban it.

Never the less Row does not mandate LTA/PBAs, but the problem is a political one-one for which I curse the right and left.  

The issue, as I understand it, is that Roe requires an exception for the Mother's life and health for any abortion restriction beyond the first trimester.  

The Right has not in the past excepted life until the last PBA federal law and then negelected the health concern which caused the SCUSA to punt it back to congress.  IF the GOP has done a anti PBA with both, it would have pasted muster.  BUT then most of the outrage against abortion about PBA, and the abortion issue would be gone for that election cycle.

The left could have agreed to a anti PBA bill with those stipulations and force the GOP to put in a bill that would pass muster, but their political calculus was the same, except they lose the abortion on demand dollars and votes.  

The Dems are coming around and Hilary Clinton, stirred a hornet's next on the left by suggesting that a anti PBA should be passed.  However the new DEM kids on the block, the progressives,  are wanting to eliminate abortion as an issue, so they want a anti PBA bill also.

But the bottom line is that Roe is not the problem, its the politics, which by the way will be about the same with Roe gone.  

But quote me the section of the Constitution that is in conflict with Roe.

Not to mention that Roe as it exists is not the only abortion friendly intepretion and may even be the least reliable. is an example of counter arguments.    

The irony seems to be that by delaying a fight on Roe for 30 some odd years, it may survive because it survived for those 30 odd years.  

A further irony may be that abortion becomes more common as most states allow it and make it a business like the UK does for Ireland.

The ultimate irony is that Roe gets revisted and a new Roe like law with firmer foundations becomes the law of the land.  

For a conflict that has consumed our nation and political life for 30 years, this has to have the gods in tears from laughter.  

If Roe falls, it will not be a "ban all abortions" or "keep abortion legal until 15 seconds before birth" decision that Roe has made it.

I don't know where you got that characterization of the abortion issue.  The fact is that states have substantial room to legislate on abortion even now.

Most states will add restrictions including PBA bans and parental notification/approval laws.

This is likely since both PBA and parental notification laws are widely popular.  Parental notification, incidentally, is allowed under the current structure of the law so long as there is a judicial bypass for specific circumstances.  I don't think you'll see any parental approval laws for the same reason you won't see any spousal approval laws.  

is that it's not a late term procedure.  From what I understand, most PBAs occur in the 5 month of pregnancy, often prior to viability of the fetus.

And beyond that it's a rather extraordinary procedure that is pretty much used only in cases where the health or life of the mother is at stake.

So, if you throw in the health/life exceptions, any anti-pba bill is essentially gutted by its own terms.

This is the left's last clear shot at preserving Roe - and let's be clear, it's all about Roe.  It's clear that "super-stare decisis" is really intended as an argument that liberals think conservatives will be swayed by -- i.e., if it's old, preserve it.  It's not an argument you'll ever hear liberals making when the precedent is something they dislike.

I really hope conservatives aren't dumb enough to fall for it.

The people propounding this have generally no respect for precedent where it disagrees with their policy views.  For example, just in the last year, the liberal side of the Court overturned precedent in the sodomy decision and the under-18 death penalty decision.  Both of those overturned cases have, at least implicitly, a much older tradition of being constitutional than Roe.  Roe was made up in the early 1970s; anti-sodomy laws and laws allowing 17 yr olds to be executed date to the start of our Republic.  

I am just so sick of this liberal baloney on stare decisis, a concept that few of them care about.  All of the "advances" they want to preserve came at the cost of overruling earlier decisions -- a move which they now claim (when applied to their decisions) is improper!  Hearing these people now propound such a selective "stare decisis" argument is really beyond dishonest.  It's sickening.  I really hope conservative judges will quickly dispense with this kind of argument and are not swayed by it.

How do you know when a decision has wrongly interpreted the constitution?

The Supreme Court claims complete authority to define the meaning of the Constitution, and the document itself is often so broad in its language that a clear meaning applicable to modern problems isn't immediately obvious.

Ultimately, whether you think a case has wrongly interpreted the Constitution is going to depend on your interpretative method--and there are plenty of those, each with their own justification.

I was astounded when I read Casey.  The argument was that in matters as divisive as the abortion issue the court settles the matter by its ruling and therefore that decision should not be lightly overruled.  

It's based on the myth that once the Court has addressed an issue everybody in the country accepts it and opposition ceases because the Court has spoken!  In what world?

The divisiveness of such issues is precisely why the court should avoid addressing them like the plague, because, after all, the Court's only means of enforcing its decrees is the acquiescence of the other branches.  If it angers too many people, it may find that the nation adopts Andrew Jackson's reasoning.  That is the basis for judicial restraint, that issues like this which are policy matters not legal ones should be resolved by democratic means.  

We claim to be a government of laws and not of men, but we are also a government by the people.  

How to define what is being banned.  That is one of the objections to legislation to date trying to restrict abortions just prior to birth of a viable child.  I think that the vast majority regard that type of abortion as unacceptable, but the devil is in the detail.  With a healthy dose of politics thrown in, it is almost impossible.  

Some think that if the health/life exception is applied to any abortion restriction, that has the effect of gutting the restriction.  

I agree that it is a real danger.  There is no real way to have an absolute result.  If you ban abortions, then abortions will happen elsewhere, be it in foreign lands, states or in allys.   If you make 'reasonable' allowances, someone will 'game' the system.

The UK requires, 2 docs to approve for example, but what hurdle is that, but the cost of 2 docs.  

It is not nice or politically correct, but in human relationships, conflicts happen, and must be resolved.  In our society, it is the courts that resolve this.  

It is not pretty, but often the legislatures punt difficult decisions by vague language to the courts to resolve what the politicians cannot.  

Andy's decision resulted in the Trail of Tears, a cautionary tale to an executive that wants to follow the same decision path.  My forefathers fought with Andy at Horseshoe Bend.  His bravery at New Orleans is a legend.  But all of that is smirched by the Trail of Tears.

To be honest, some decisions get tested and retested.  

Plessy v. Ferguson was tested until it died.

But at some point, testing stops because, the decision is so useful that most folks accept it.  

I am a bit surprised that Roe may be at this point.  And I use the term 'may' deliberately.  This is new to me, but there is a sense about it that explains a lot.  

I have read a commentary over at is down so I cannot find the URL) by an opponent of Roe.  But one thing he said that Roe did and that was to solve a problem.  Maybe the logic is flawed, but it solves a problem so effectively that revisiting it is difficult.  

Long ago when dogs ran free where I lived and drove, dogs would chase cars sometimes for miles.  I discovered that if I had a pack of dogs or even a singleton chasing my car, I could stop it and the dogs would  stand around confused, woof confusionly and then go onto other business.  I called this the 'what do I do now' look.   For 30 years we have had folks chasing the end of Roe, and now that it may be an actuality, all of a sudden, lots of those doing the chasing are standing around with the 'what do I do now' look.  

Which is, of course, far more polite than saying "I'm far more likely to take the legal analysis of a gerbil addicted to sniffing glue than yours, Mr. Chairman--but thanks for the attempt."

"It is not nice or politically correct, but in human relationships, conflicts happen, and must be resolved.  In our society, it is the courts that resolve this."

This is manifestly not true.  It is an intellectual stolen base, an unproven assertion inserted into the discussion sans evidence or support.

There are many mechanisms for settling conflicts in our society, the most prominent of which is the political process.  The courts, in their various capacities, do not solve all or even most issues that arise in society.

As a prominent example, the Roe decision settled nothing- or have we missed the last 32 years of political warfare?  If the courts couldn't settle that, what volatile issues can they settle?

the bidding

You were banned, asked for reinstatement, told no and now have re-registered... twice.


Remember about a dozen years ago, someone added the text of the Fourth Amendment to a bill in the House? Not only did no one recognize it, but somebody argued that it would make it too hard for law enforcement to do its job. D'oh!

Sorry for the offtopic, but it's one of my favorite giggles.

I much prefer your summary to the actual text of the Roberts answer to Snarlin Arlen's questions.

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