How Much Should Precedent Bind Judges? ; A Bush Nominee to the Supreme Court May Be Probed about Whether He or She Would Overturn Earlier High-Court Rulings

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, July 18, 2005 | Go to article overview

How Much Should Precedent Bind Judges? ; A Bush Nominee to the Supreme Court May Be Probed about Whether He or She Would Overturn Earlier High-Court Rulings


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


Whomever President Bush nominates to fill Sandra Day O'Connor's seat on the US Supreme Court will inherit enormous power immediately upon confirmation.

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 government."

He added, "No misconception could do more lasting injury to this court."

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. …

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