The Supreme Court issued three rulings today. Eight cases are still before the Court - one of those, the case of Scott Panetti. More opinions are likely to be released on Monday. In today's New York Times Linda Greenhouse has, "Precedents Begin to Fall for Roberts Court."
No Supreme Court nominee could be confirmed these days without paying homage to the judicial doctrine of “stare decisis,” Latin for “to stand by things decided.” Yet experienced listeners have learned to take these professions of devotion to precedent “cum grano salis,” Latin for “with a grain of salt.”
Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?
It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.
The fact is that the court regularly revisits and reconsiders its precedents, as Chief Justice William H. Rehnquist, the current chief justice’s former boss and mentor, once observed succinctly. “Stare decisis is not an inexorable command,” he said in a 1991 opinion that included, in a page and a half of small type, a list of 33 precedents that the court had overturned in the previous 20 years.
So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)
Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.
And:
When the court explicitly overturns precedent, it tends to offer a checklist of justifications: the precedent has eroded over time through disuse or disregard (this was the majority’s stated reason for discarding the “unique circumstances” precedents in last week’s decision, Bowles v. Russell), or it has been a source of confusion in the law, or experience has proven it “unworkable.”
But the real reason is usually that a changing court in changing times has come to see the question in a new light. In Bowers v. Hardwick in 1986, the Supreme Court dismissed as “facetious” the notion that the Constitution offered protection for gay rights. Overturning that decision 17 years later, Justice Anthony M. Kennedy declared for the majority in Lawrence v. Texas: “Bowers was not correct when it was decided, and it is not correct today.”
Still, the court will strive to provide an explanation, if only to avoid the kind of accusation that Justice Thurgood Marshall leveled at the majority when, taking advantage of two retirements, the court reversed course and by a vote of 5 to 4 made “victim impact” testimony admissible in death penalty hearings.
“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall declared on the final day of the court’s 1990 term. Two hours later, he announced his own retirement, his words still hanging in the air.
At FindLaw.com, Edward Lazarus has commentary, "The Transformation of Justice Ruth Bader Ginsburg, As the Roberts Court Shifts from Harmony and Consensus to Bitter Division."
What a difference a year makes. Last year, at about this time, in the wake of an unusually high number of unanimous opinions, much of the legal world was remarking on the perceived ability of Chief Justice John Roberts to bring greater harmony and consensus to a Court that had often fractured badly under his predecessor, William Rehnquist. But now, in the wake of the recent bitterly contested 5-4 decisions cutting back on abortion rights and severely limiting women's ability to sue under Title VII for pay discrimination, much of the legal world is remarking on the seemingly intractable split between the Court's liberal and conservative wings.
As most commentators are beginning to realize, worse is yet to come. Sometime in the next week or so, the Court will very likely endure another 5-4 emotional meltdown. This time, the subject will be the constitutionality of pupil assignment plans that, in order to maintain racial diversity in K-12 classrooms, use race as one factor in reassigning kids from oversubscribed public schools.
The smart money says that the Court will strike down such plans (common across the United States), and thus deal another crippling blow to the judicial ideals held firmly by the Court's more liberal justices.
This turnabout in the Court's internal dynamics was quite predictable -- and, indeed, was predicted by a number of observers. It speaks volumes about the unrealistic expectations we persist in maintaining about our Supreme Court.
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