Whomever President Bush nominates to fill Sandra Day O'Connor's
seat on the US Supreme Court will inherit enormous power immediately
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.
To senators intent on divining a nominee's judicial leanings,
questions that explore a prospective justice's thoughts about how
and under what circumstances to uphold a legal precedent (or
overturn it) could offer the Judiciary Committee, and the nation, an
opportunity to gauge how a particular nominee might shift the
balance of power on the high court - and ultimately shape the
direction of American law.
"In a situation in which you can change the balance of the court,
questions of stare decisis come to the forefront," says Michael
Gerhardt, a constitutional law professor at the University of North
Carolina School of Law at Chapel Hill. "Most people expect President
Bush to appoint someone who will take the court in a different
direction, and what that means is deciding cases not just
differently but overturning precedent."
Power to overrule
While each of the nine justices casts but a single vote in each
case, O'Connor, a centrist swing voter, has often delivered the
decisive fifth vote. Now with her announced retirement, the newest
justice will inherit not only the authority to cast the fifth vote
in sharply divided cases, but also to cast the deciding vote to
overrule existing precedents should four other justices agree to
revisit any of the landmark 5-to-4 cases decided by O'Connor.
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
He added, "No misconception could do more lasting injury to this
Suzanna Sherry, a constitutional law professor at Vanderbilt
University Law School in Nashville, Tenn., says it can be difficult
to predict how a new justice may vote when legal precedents are on
the line. The justice's personal views regarding a case may not
control the final outcome, she says.
"A judge who thinks affirmative action is unconstitutional but
who is also strongly influenced by principles of stare decisis might
decide not to overrule the earlier case, but to limit it, and not
extend it in the next case," Professor Sherry says. …