Patterico's Pontifications


Dafydd: Now That I’m Senator…

Filed under: Constitutional Law,Court Decisions,Judiciary — Dafydd @ 2:19 pm

[This post is by Dafydd ab Hugh, not Patterico!

¡Rabanos radiactivos!]

…Having defeated both Barbara Boxer and Diane Feinstein in a WWE SmackDown event that was carried on pay-per-view (but available only in Upper Iguana) — and now that I’m ensconced on the J-Com, after defeating both Arlen Specter and Pat “Patterico” Leahy in simultaneous wrist-wrestling competitions — I have settled upon my question to ask John Roberts when he comes before me:

AB HUGH: Judge Roberts… do you believe it is ever appropriate for the Court to overrule established precedent, breaking with stare decisis? And if so, then what would be your deciding criteria for doing so?

I would love to see the lawyers on this blog hazard guesses as to what Roberts’s answers would be; I don’t know much about his jurisprudence, but I do get the impression he’s fearfully impressed with the solemnity of tradition. So how would he answer such a question?

(Yes, I suppose he could refuse to answer, on the grounds that it was possible a case might someday come before him where one side or the other argued that “settled law” be overturned. Let’s take that one off the table, however… since if he did say something that preposterous, Sandra Day O’Connor would un-resign, Mrs. Roberts would give her husband a boot to the head, and Harvard would demand its diploma back.)

14 Responses to “Dafydd: Now That I’m Senator…”

  1. Beat you to it, Dafydd. From my blog on July 21, 2005:

    “The question I would most like asked of Justice nominee Roberts is his view of when, and using what rationale, it is appropriate to revisit/overrule a wrongly-decided Supreme Court opinion (without mentioning any particular opinion).”

    Ben Pugh (1527b3)

  2. It is a very easy question to answer: “When the prior decision was WRONG.” Brown v. Board of Education, Mapp v. Ohio, Lawrence v. Texas, overruled relatively recent prior decisions on the basis that they were wrong. It will make the liberals and at least one conservative, me, happy.

    nk (54c569)

  3. AB HUGH: So by “wrong,” Judge Roberts, you mean anytime you disagree with a prior decision it’s all right to vote to overturn it? Or are the criteria more involved than that?


    Dafydd (f8a7be)

  4. Roberts will probably have a similar philosophy as Rehnquist: Miranda embedded as part of the social construct (and not objectionable to constitution), Roe not on both counts.

    Paul Deignan (664c74)

  5. As best as I can see the Court re-tries the prior cases and reaches a new decision. It may look to bad consequences occuring from the prior decision, e.g. three generations of black children not getting an “equal” education as in Brown. It may apply an analysis and standard not recognized by the prior Court as it did in Lawrence. This is pretty good, from Gideon v. Wainwright (right to an attorney): “Betts [the prior decision] was ‘an anchronism’ when handed down and … it should now be overruled. Mapp’s standard is the most commonly used by the present Court — it looked at what state legislatures had done in the intervening time to protect their citizens from the consequences of the Court’s prior decision.

    I think stare decisis in constitutional and statutory interpretation has a diferrent meaning than it does in the common law. The common law was unwritten law — judge-made law if you wish — and stare decisis was considered vital in order to establish consistency, coherence and predictability. Constitutional provisions and statutes are written law and should be interpreted fairly, to give effect to their language and to their intent, and with a view to avoid creating judge-made law, even if it means annuling prior interpretations. I do not consider this optional on the part of judges — I consider it their duty and part of their oath of office.

    nk (f58916)

  6. Stare decisis in statutory interpretation doesn’t bother me nearly as much as it does in the constitutional context. If a court misinterprets a statute, the legislature can fix the problem anytime it wants to by a simple majority. If they don’t, it is not unreasonable to conclude that the legislature agrees, or at least does not necessarily disagree, with the ruling. But if five unelected judges can bugger up a constitutional provision it took 67 Senators, 290 Congressmen and 38 legislatures to create in the first place, the least the court can do is to allow five other judges the luxury of being able to fix what no one else can.

    Xrlq (ca1ad5)

  7. Roberts could quote Abraham Lincoln from his speeches on the Dred Scott decision. Lincoln asserted that not all precedents are “settled law,” and certain factors must be taken into consideration in determining whether some principle is settled or not. Lincoln said Dred Scott was “erroneous,” but he would not “resist” it.

    With Dred Scott, Lincoln was terrified that it would be extended by another decision, by which non-slave states would be forced to accept slavery, that is, they could not exclude it, just as Dred Scott had held that territories could not exclude it.

    So, I suppose the fear of an extension, that extension being deleterious, could lead one to cut the root before the poisonous branch blossomed.

    MD (777f5a)

  8. Hey Everybody,

    Either I was just in a trance or posts did funny things. I am not going to post about legal precedents, I was trying to add a PS on my post about “We forgot to mention.

    MD in Philly (b3202e)

  9. Oops again, I just saw where the above post was simply “MD”

    MD in Philly (b3202e)

  10. As I have said many times, I’m not a lawyer and damned proud of it. But to my layman’s eyes, these “standards” y’all are enunciating look pretty vague to me.

    Can somebody give me a more concrete reasoning? Obviously you can’t have a simple, eight-rule heuristic… but something more explicit than ” embedded as part of the social construct.”


    Dafydd (f8a7be)

  11. OK, Dafydd. I don’t even know what a “heuristic” is and this is your post. I did my best.

    nk (956ea1)

  12. Dafydd,

    How is this for a specific rule:

    “Ask me, I’ll decide” (and I know it when I see it).

    Seems to me that passes the Marshall-O’Connor test of jurispurdence or were you looking for something more specific that what we’ve been suffering under for 45 years now.

    Paul Deignan (664c74)

  13. Daffyd–

    Isn’t it kinda hard to call a decision that has been widely protested continuously for the 34 years since it was handed down “settled law”?

    There’s no one on the street protesting Miranda, or Slaughterhouse, or Wickard … but there are with Roe. Blacks never accepted Plessey, either. On this basis, however, Roe is less accepted than Plessey was.

    So, I’d suggest this answer: to be covered by Stare decisis a decision needs to have been widely accepted over the intervening time. Miranda being an example. Kelo would be an obvious example for something not yet accepted.

    To the followup: “Is Roe then settled law?”, I’d respond, “Senator, the fact that you are asking the quesiton is your own answer.”

    Kevin Murphy (6a7945)

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