SOMETHING TO LISTEN FOR DURING the Roberts confirmation hearings is an uncommon word, “superprecedent.” Sen. Arlen Specter, chairman of the Judiciary Committee, used “superprecedent” in a July 24 op-ed in the New York Times previewing the hearings, which are scheduled to begin September 6. Specter began by noting that Sandra Day O’Connor, whom Roberts would succeed, was the decisive vote in many 5-to-4 decisions “on the cutting edge of issues confronting our society,” none more important than Roe v. Wade, “the central issue.”
Specter wrote that while some senators have announced their intention to ask Roberts whether he would overrule the landmark abortion case, the nominee could “answer [that question] or not as he sees fit.” Specter invoked “confirmation precedents” to support the proposition that a nominee need not “spell out how he or she would rule on a specific case,” but he emphasized that nothing forecloses “probing inquiries on the nominee’s general views on jurisprudence,” not least on “how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision.” Then came the unusual word: “Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.”
Stare decisis–Latin for “let the decision stand”–is the doctrine that the Court’s precedents should govern decisions in similar cases by later Courts. The kind of stare decisis Specter has in mind is constitutional–that in which the decision at issue is a construal of the Constitution. Precisely because of the difficulty of correcting a wrong constitutional ruling through the amendment process–Congress can far more easily enact a new law to respond to an erroneous statutory decision–the Supreme Court has on numerous occasions overruled a constitutional precedent. Stare decisis doesn’t ordinarily concern a Court unless it decides that the previous decision, which one party or the other contends should govern the new question, was indeed wrong.
Specter thinks Roberts should discuss factors to be weighed in deciding whether to let a prior decision stand. Such factors (notably the need for stability and predictability in the law) are not legislated or found in the Constitution but are the justices’ manufacture and thus reflect (presumably) how they think about the judicial office. For that reason, if anything is worth asking a prospective justice about, how the person might evaluate the force of a precedent having concluded it was wrong ought to be high on the list. But what would it mean to ask about a superprecedent? What, pray tell, is that?
As described by Specter, it’s a decision like Roe that has been reaffirmed in later cases. Plainly, Roe itself is to be understood here as the superest of all for those in the business of superprecedentialism (neologisms being the fashion here). Specter attributed the term to unnamed legal scholars, a veritable invitation to the law bloggers to figure out who those people might be. Within hours, superprecedent and its equivalents having been Googled and Westlawed and Nexised many times over, the results yielded up by the blogosphere were, well, interesting.
“Superprecedent,” it turns out, has been mentioned in law journals, but almost always to mean a case whose holding is so clear and accepted that later cases governed by it settle rather than go to trial. As a result, such a case is undercited (so to speak) in judicial opinions. This, it turns out, is of concern to academics seeking to infer from the frequency of citations the kind of influence a given case might have. A superprecedent, by its very influence, leaves no markers by which that influence might be measured. This is obviously not the sort of superprecedent Specter had in mind. I called his office, which referred me to an article by William Eskridge and John Ferejohn in the Duke Law Journal. But that piece concerns “superstatutes,” a different topic.
Maybe Specter heard some legal scholars speak of superprecedent in the cryptic way he described it in his Times op-ed. Or maybe he heard some of his Democratic colleagues on the committee–the Democrats being the party of Roe‘s all-out defense–speak of superprecedents and mumble something about legal scholars who “attach special significance” to them. Plainly, the sense in which Specter’s unnamed legal scholars understand superprecedents is one favorable to the perpetuation of the Roe precedent.
A Specter aide also used the term super-stare decisis in our conversation. “There is law so grounded in precedent that it would carry a definition of super-stare decisis” and thus would be “highly unlikely” to be overruled. The aide noted that super-stare decisis is “an idea that’s been thrown out there”–a formulation that suggests it doesn’t necessarily have Specter’s endorsement, though of course he has long been a supporter of Roe v. Wade. Specter, I learned, may schedule time during the hearings for a panel of scholars to discuss super-stare decisis.
In that case, a scholar surely worth inviting is Earl Maltz of the Rutgers Law School, author of a 1992 Notre Dame Law Review article in which he used the term “super-stare decisis“–but by no means favorably. The title of Maltz’s piece is “Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeast Pennsylvania v. Casey,” a 1992 case.
At issue in Casey were a series of Pennsylvania abortion regulations. Planned Parenthood said they violated the abortion right constitutionalized in Roe. Several parties–including the Bush administration–not only defended the regulations but also asked the Court to overrule Roe. (Roberts, who signed a 1990 brief in which it was noted that Roe was wrongly decided and should be overruled, knows Casey as well as anyone, since at the time he was still deputy solicitor general and doubtless helped prepare Solicitor General Kenneth Starr for the argument.) The Court sustained all but one of the regulations, but it pointedly declined to overrule Roe. Presumably, this “reaffirmation” of Roe is what makes the decision–to its defenders–a superprecedent.
Maltz’s article usefully recalls key aspects of Casey. One is that the majority jettisoned Roe‘s (obsolete) “trimester analysis,” which, not incidentally, “had formed the basis of post-Roe abortion jurisprudence.” A second is that the majority held to what it called “Roe‘s essential holding” by recasting it to mean that women may choose to have an abortion before viability without “undue interference” from the state–hence the “undue burden” test. In making these moves, the majority “explicitly overruled contrary [abortion] holdings” in cases in which the Court had adhered to Roe. Only two members of the Court–John Paul Stevens and Harry Blackmun (the author of Roe) voted to retain “pre-existing law in its entirety.” Maltz’s article is a reminder of how the Casey majority treated Roe–hardly with the kind of deference presumably demanded of a superprecedent.
Moreover, the article provides a devastating analysis of the famous joint opinion in Casey. Written by Justices O’Connor, Anthony Kennedy, and David Souter, the opinion suggested that maybe even all three would have voted against the holding in Roe, had they been on the Court in 1973. Yet they were unwilling now to overrule Roe. Why? Stare decisis. In particular, the joint opinion contended that failure to follow precedent would undermine the Court’s legitimacy and weaken the Court’s ability to command public adherence to its decisions.
As Maltz pointed out, this analysis “reverses the accepted view” that constitutional decisions should have less protection under stare decisis because they are less amenable to correction by Congress than statutory decisions. “In essence,” Maltz observed, “the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position but also have that position protected from later judicial action by a kind of super-stare decisis.”
Roberts himself hasn’t opined on super-stare decisis, which operates to protect only liberal precedents and indeed maybe only Roe. If he’s asked about the concept, he would do well to tell the committee (with his usual wry humor) that stare decisis presents enough issues without having to supersize it.
Meanwhile, the Bush administration has plainly not accepted the idea of Roe as a superprecedent. Attorney General Alberto Gonzales told the Associated Press some weeks ago that the Court isn’t obligated to follow a previous decision “if you believe it’s wrong.” The Court is at least two votes away from having a majority that might overrule Roe. If Roberts provides one of those votes, perhaps he’ll write the opinion responding to the Casey joint opinion–and include a footnote summarily dispatching this notion of a superprecedent.
Terry Eastland is publisher of The Weekly Standard.
