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

American Thinker ^ | August 06, 2007 | Clarice Feldman

[neverdem]

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

[the Real fifi]

ping

[jws3sticks]

Ping and watching for interesting postings to come. Great start. Thanks.

[FormerACLUmember]

Charles Schumer is underated. He is one of the most evil and dangerous men in America.

[TChris]

Great piece!

I'm now waiting for Kelo to be overruled for the unbelievable disaster it is.

[Lancey Howard]

Clarice certainly does her homework.

A simplified way to demonstrate the folly of "stare decisis" would be to list the hundreds of times that the Supreme Court has reversed itself.

A look also at the massive number of 5 - 4 decisions adds further evidence that the left's obsession with "stare decisis" is insincere and idiotic. (Of course, leftists like Schumer, Breyer, and the rest of that ilk only care about "stare decisis" when they are concerned that the "progress" they have made in advancing their socialist agenda via activist courts is threatened.)

[neverdem]

Charles Schumer is underated. He is one of the most evil and dangerous men in America.

Isn't he number three in the neoCOM's leadership in the Senate? He was supposed to have maxxed his SAT score according to the NY Times puff piece on him years ago.

[Lancey Howard]

Kelo is one obscenity that will hopefully soon be reversed, and CFR is another.

[mkjessup]

Charles Schumer is underated. He is one of the most evil and dangerous men in America.

And his continued representation of New York State in the U.S. Senate is truly a dagger pointed at the Constitution.

[You have to be familiar with James Taranto's 'Best of the Web' feature on the WSJ Opinion Page to get that joke, lol]

[Turret Gunner A20]

re: # 4

You got that right!!!

[Jeff Chandler]

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.

What a concept!

[gakrak]

ping

[gakrak]

yes, my senator is without principle. Amen.

[TexasMatty]

Beat me to it. Chucky Schmucky had no problem with stare decisis when the mostly Liberal court was running roughshod
over the Constitution. Now that Kennedy is manning up and voting with the four originalists he wants to whine. I say we clone Scalia 8 times and really give Chucky nightmares.

[RobbyS]

Schumer depends on the ignorance of the public. In truth stare decisis depends heavily new cases and new facts. The weight of facts ought to determine changes in law.

[JohnLongIsland]

once again schmuckie proves why he is the worst senator in U.S. history.

[patj]

In fact, if Schumer was such a big fan of stare decisis, we shouldn’t have Roe v Wade.

[Matchett-PI]

More - from 2005:

The Supremes, Alito and Stare Decisis
by Jan LaRue, Esq. Posted 11/04/2005 ET
Updated 12/23/2005 ET
http://www.humanevents.com/article.php?id=10073

For Latin lovers, “precedent,” or stare decisis, means:
To stand by decided cases, to follow precedent. A flexible doctrine of Anglo-American law that when a court expressly decides an issue of law, which is generated by the facts of a unique dispute, that decision shall constitute a precedent which should be followed by that court and by courts inferior to it, when deciding future disputes, except when the precedent’s application to a particular problem case is unsuitable to the character or spirit of the people of the state or nation, and their current social, political and economic conditions.

All lower courts, both federal and state, consider themselves bound by rulings of a higher court. Judge Alito explains that in his opinions on the U.S. Court of Appeals for the Third Circuit.

Such deference, however, does not apply to the same degree when the Supreme Court addresses its own prior rulings.

One of the many myths about the power of precedent comes from the left’s treatment of it as equal to the text of the U.S. Constitution. Lest we forget, they remind us ad nauseum of that end-all be-all super-duper precedent, Roe v. Wade.

This, of course, relies on the “living” theory of the Constitution, as the late Justice Lewis Powell wrote in his dissenting opinion in an Eighth Amendment case, Rummell v. Estelle (1980). Powell was joined by Justices William Brennan, Thurgood Marshall and John Paul Stevens: “We are construing a living Constitution.”

Regular folks can’t see heretofore unseen fundamental rights because only the Supreme clairvoyant class can do so. These are those who are energized by the spirit of the “Great Carnack,” the late-great Johnny Carson’s favorite seer, soothsayer and sage. They alone know the “evolving standards of a maturing society” before the rest of us do because they alone are keepers of the Supreme Etch-A-Sketch.

A justice occasionally admits to one of the Court’s creative writing projects, as did the late Justice William O. Douglas in his dissenting opinion that criticized the obscenity test articulated by the Court in Miller v. California (1973): “Today we would add a new three-pronged test. … Those are the standards we ourselves have written into the Constitution.”

Then there’s the late Justice Brennan, another hero of the left, who wrote in his concurring opinion in Torres v. Puerto Rico (1979):
The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government.

I doubt that any member of the Senate Judiciary Committee’s undermedicated psychotic wing will ask Judge Alito to expound on that one.

The left loves it when activist justices create so-called constitutional rights that force into law the policy initiatives that legislatures and the people reject. But leftists protest with pounded chest the notion that another Court has a right to undo such rights because that, you see, would be “judicial activism.”

If you don’t understand this­ feel affirmed. It simply means you haven’t taken leave of your senses.

If precedent were the equivalent of constitutional text, the Court would, in effect, be amending the Constitution at will and, by virtue of reversing its own prior rulings, repealing its amendments. So much for Article V, which limits amending the Constitution to “We the People.”

Consider the words of the late Justice Hugo Black in his dissenting opinion in Griswold v. Connecticut (1965):

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it.

Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me.

The left side of the Court and its mushy, swinging, middle, moderate, consensus members have never explained how such creative constitutionalism contributes to the need for stability and predictability in the law. But then, they rarely bother with explaining such trivia to the unenlightened ones.

It is true that the Supreme Court does not and should not disregard its prior rulings as if they were yesterday’s newspaper because we do need stability and predictability in the law. Nonetheless, the Court has never viewed its precedents as absolute.

Take, for example, the left’s current “consensus” favorite, Justice Sandra Day O’Connor’s dissenting opinion in Boerne v. Flores (1997), in which Justice Stephen Breyer joined:
Stare decisis concerns should not prevent us from revisiting our holding in Smith.

“‘[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’” … This principle is particularly true in constitutional cases, where-as this case so plainly illustrates­“correction through legislative action is practically impossible.” … I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it.

And then there’s the ever-favorite-finder of the “fundamental right to abortion,” the late Justice Harry Blackmun. Blackmun wrote the majority’s opinion, which jettisoned a precedent of merely nine years duration, National League of Cities v. Usery (1976), in Garcia v. San Antonio Metropolitan Transit Authority (1985).

We do not lightly overrule recent precedent. We have not hesitated, however, when it has become apparent that a prior decision has departed from a proper understanding of congressional power under the Commerce Clause. … Due respect for the reach of congressional power within the federal system mandates that we do so now.

Justice Powell’s dissenting opinion acknowledges that precedent is not absolute:

There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent decisions were ignored as abruptly as we now witness.
Consider a few other notable opinions in which the Court overturned its precedents:

Brown v. Board of Education (1954) reversing Plessy v. Ferguson (1896). The Brown Court figured out that separate isn’t equal, despite the fact that the text of the 14th Amendment has said so since 1868. No Etch-A-Sketch needed there.

Atkins v. Virginia (2002) reversing Penry v. Lynaugh (1989), which held that executing a mentally retarded murderer, who had the reasoning capacity of a 7-year-old, did not violate the 8th Amendment. Evolving standards of decency evolved in 13 years as the Court looked to polling results and international law.

Lawrence v. Texas (2003) reversing Bowers v. Hardwick (1986), finding no fundamental right to engage in sodomy.

Rasul v. Bush (2004) reversing Johnson v. Eisentrager (1950), which held that “aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus.” Justice Antonin Scalia argued in his dissenting opinion:

“The availability of the habeas statute to aliens detained beyond the territorial jurisdiction of U.S. courts contradicts the precedent set forth in Eisentrager over fifty years ago. The ruling of the majority overturns settled law by misinterpreting previous court rulings.”

Roper v. Simmons (2005) reversing Stanford v. Kentucky (1989), which upheld application of the death penalty for those convicted of murder committed when 16 years of age or older. The decency evolution took 16 years this time.

Precedent is “settled law” but it isn’t as settled as the left would have you believe, especially when their side didn’t pour the concrete.

[N2Gems]

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[WashingtonSource]

Schumer was behind the Dhimmi-plot to find anti-illegal-immigrant populists to run from Dhimmi offices in conservative disctricts, thereby giving the Dhimmis control of Congress. That, my dear Freepers, is evil.