Samuel Alito, appearing with Arlen Specter shortly after his nomination to the court, amiably endured the Pennsylvania senator’s lightweight babblings. Expect to be asked about “super-duper precedent,” Specter, still enamored with his phrase from John Roberts’ hearings, informed Alito. Like Roberts, Alito will no doubt humor this gibberish before the senators. Then hopefully he’ll disregard it. Supreme Court Justices take an oath not to stare decisis but to the Constitution. If stare decisis becomes a more fundamental doctrine than the Constitution itself, then we’ve lost it for good.
The senators’ interest in stare decisis as the trumping principle of constitutional interpretation is transparently dishonest. If they take preserving precedent so seriously, why do they routinely call on judges to disregard antique laws and rulings (as in Bowers v. Hardwick)? Indeed, their antiquity — that these laws preceded our new age of enlightenment — is treated by these politicians as an argument-ending proof against them. Even more basically, if precedent is so sacred, why isn’t the original meaning of the Constitution a precedent worthy of respect?
Stare decisis has become a euphemism for the expectation that justices will bow before those great moments in liberal jurisprudence when the court rejected stare decisis to invent a new right or declare settled laws unconstitutional according to “evolving standards” of indecency. Under this willful construction of stare decisis, a liberal judge who disregards a precedent he dislikes is not in violation of “the doctrine”; only conservative judges who reject precedents of liberal courts can be.
The greatest transgressors of stare decisis are the courts liberal senators herald the most. The Earl Warren court junked 63 prior decisions; the Warren Burger court tossed out 61 decisions.
This revival of interest in the doctrinal authority of stare decisis, then, is nothing more than an attempted consolidation of liberal gains by nondemocratic means and a handy wedge to further divide constitutional interpretation from the Constitution itself. James Madison, called the father of the Constitution, wrote, “There has been a fallacy…in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Constitution. This distinction is too obvious to need elucidation. None will deny that precedents of a certain description fix the interpretation of a law. Yet who will pretend that they can repeal or alter a law?”
Madison never met Arlen Specter or Ted Kennedy. As far as these senators are concerned, stare decisis is more authoritiative than the Constitution itself and can transform an unconstitutional law into a constitutional one (and vice versa). Specter’s “super-duper precedent,” in other words, simply authorizes, and gives quasi-intellectual covering, to judicial tyranny, placing the authority of the Constitution not in the hands of a sovereign people who live under it but in the hands of judges whose alterations render it meaningless. Rule by stare decisis is not rule by law but rule by judges.
Stare decisis is not a strict doctrine but an “administrative and social convenience,” writes Antonin Scalia. “Courts do not have the time to reconsider every legal issue anew, and citizens cannot confidently plan their actions if what the Supreme Court has said a statute means today is not in all probability what the Supreme Court will say it means tomorrow. (Some modern systems, of course, have not thought this administrative and social convenience worth the trouble, and, in principle at least, forgo the doctrine of stare decisis.) And since it is just an administrative and social convenience, the doctrine of stare decisis is not applied rigidly, as it used to be at common law.”
Supreme Court justice William O. Douglas, writing in a 1954 Columbia Law Review article, rejected the idea that a justice has a special duty to adhere to the practice of stare decisis. “It is the Constitution which he swore to support and defend not the gloss, which his predecessors may have put on it,” he wrote. Justice Felix Frankfurter wrote that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”
So when is stare decisis applicable? Only when it involves prior decisions that illuminate the original meaning of the Constitution. Yet this is the one expression of stare decisis its suddenly enthusiastic advocates forbid. In the de facto ongoing Constitutional Convention that is the Supreme Court, justices are expected to ignore those rulings that draw attention to the actual words of the Constitution and cobble together new constitutional rights by picking and choosing phrases from its most recent precedent-busting rulings.
Stare decisis in the hands of judicial activists turns the assumption underlying it upside down: old rulings that safeguard the Constitution receive no respect while relatively fresh misinterpretations of the Constitution, as in Roe v. Wade, assume a sacred air. The perversion of stare decisis is complete when instead of serving the Constitution it becomes a pretext for subjecting it to the most recent judicial whims.