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Friday, Dec. 13, 2002

The Supreme Court's recent decisions to hear an affirmative action case and a same-sex sodomy case later this spring mean that the current Term--perhaps Chief Justice Rehnquist's last Term--may well end with a bang.

One case arises out of the University of Michigan's race conscious admissions polices, and the other implicates a Texas sodomy statute. Both will not only require the Court to explain its view of the central meaning of the Fourteenth Amendment (the provision invoked by the challengers in both cases), but will also oblige the Justices to reckon with the principle known as "stare decisis," or respect for judicial precedent.

In each case, the Court will have to confront one of its more noteworthy decisions of the last quarter century. The Michigan case will require the Court to revisit the 1978 Bakke decision, involving a University of California Medical School affirmative action program. Meanwhile, the Texas case will force the Court to ponder the 1986 Bowers v. Hardwick decision, upholding a Georgia law that made sodomy a crime.

We suspect most liberals are hoping the Court will retain the core of the Bakke ruling and repudiate the essence of Bowers, while many conservatives are probably rooting for precisely the opposite.

So now is a good time to think about the role that stare decisis does, and should, play in constitutional adjudication. In today's column, we will consider a few general guiding principles. In a later column, we will take on some more specific issues.

The Casey Approach: Retaining Roe v. Wade Despite Reservations

The most important modern discussion of stare decisis came in the 1992 case of Planned Parenthood v. Casey. In Casey, a majority of the Supreme Court explained why it was retaining the "essential holding" of Roe v. Wade notwithstanding substantial "reservations" that (at least some of) the Justices had about the correctness of the Roe decision itself.

The Court explained that while the rule of stare decisis is not an "inexorable command," a decision to overrule an earlier case "should rest on some special reason over and above the belief that [the] prior case was wrongly decided."

For the Casey majority, it was unclear that even an egregious error in interpreting the Constitution in the first case (here, Roe) would constitute special justification for overruling the mistake.

The Problem with Casey's Approach: Putting the Doctrine Above the Document

We think this "special justifications" approach wrongly submerges the meaning of the Constitution itself and improperly elevates the importance of the Justices' decisions. In other words, Casey privileges cases over the Constitution - the doctrine over the document.

But the Constitution, not the Court's case law, is what "We the People" ratified in the 1780s and later through the amendment process. It is the document that creates the judiciary, not vice versa.

Indeed, the same Constitution that establishes the federal courts and empowers them to hear cases "arising under this Constitution" requires all judges to swear an oath of allegiance not to their past rulings, but to the document itself. If neither the executive nor legislative branch of the federal government may unilaterally change the meaning of the Constitution, neither should the judiciary be able to do so.

If we had to identify precedents supporting this view, we would point first to John Marshall's fountainhead 1803 opinion in Marbury v. Madison. That opinion makes clear that the entire basis of judicial review is to ensure compliance with the Constitution itself, as opposed to the misinterpretations of the Constitution by any branch of government--whether Congress or the President, or the judiciary itself.

Interestingly, the landmark Marshall Court case of McCulloch v. Maryland did not cite to a single Supreme Court precedent, even as it lavished attention on the document's text, history, and structure.

Prior to Casey, the Court had never clearly articulated the "special justification" approach; and in many important twentieth-century cases, the Court had in fact overruled its past precedents simply because it found them wrongly decided--exactly the approach Casey rejected.

So in addition to being a profound misinterpretation of the document and the Court's own role, the Casey approach to precedent was, well, unprecedented! (It's also worth mentioning that Casey in fact overruled two lesser-known abortion cases while loudly pledging allegiance to precedent.)

The Casey Court felt particularly reluctant to overrule the highly visible case of Roe v. Wade out of a fear that some observers might perceive the Court as "surrender[ing] to political pressure." It worried that such a perception could "seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law."

It is no accident that some of the Court's most legitimate cases today are cases in which the Court repudiated its prior misinterpretations. Consider Brown v. Board of Education - which in effect walked away from Plessy v. Ferguson's "separate but equal rule." Or consider a line of cases in which the Court overturned prior precedents to recognize that the Bill of Rights is generally applicable against state governments as well as the federal government - a proposition that today is a truism.

Our Preferred Approach: The Constitution's Own Concept of Stare Decisis

None of this is to say that an earlier judicial decision by the Supreme Court should carry zero weight. By authorizing judicial review in cases "arising under this constitution," Article III of the Constitution itself contemplates that courts, particularly the Supreme Court, will craft doctrine to fill the gaps in the document. The Court will do so, the Constitution anticipates, by providing interpretations of the meaning of the Constitution, giving reasons for those interpretations, developing mediating principles, and crafting implementing frameworks to enable the document to function as in-court law.

Moreover, Article III envisions the Court as a continuous body, which never automatically turns over, the way the House turns over every two years and the Presidency every four years. A continuing body would seem intentionally structured so as to give some weight to its past, and some thought to its future. It does not invent itself anew each day.

Given this constitutional design--evident in the very structure of the document itself--we think it quite appropriate for the Court to give its past decisions a rebuttable presumption of correctness. A past case may properly control a present dispute until the past ruling is proved wrong, with those challenging it saddled with the burden of proving its wrongness.

We think it is also permissible for a Justice, in deciding whether that burden is met, to give a precedent persuasive weight because of the credibility of the Justices who reached that earlier decision. "If John Marshall and his brethren thought X, perhaps X is likely to be right after all," is a completely rational and acceptable form of constitutional reasoning. (For similar reasons, many Justices have historically given Congress, a coequal branch worthy of respect, the benefit of the doubt in certain cases.)

The precise persuasive weight of a past case will, of course, vary. Not all Justices are John Marshall, and it may be particularly relevant that an especially keen Justice dissented in the earlier decision with an exceptionally forceful critique. (Consider, for example, the now-famous dissent of the first Justice Harlan in Plessy v. Ferguson.)

But generally speaking, both as a default rule and as a persuasive weight, a prior Supreme Court case ought to count, under our approach, for much more than, say, a typical law review article (or online column, for that matter) written by law professors.

And of course, as we have explained in earlier columns, Supreme Court precedents are binding on lower court judges, state and federal, regardless of whether these lower court judges are persuaded by the Court's reasoning. (The Constitution thus makes the high court "Supreme" not over the document itself, or over co-ordinate branches, but over judges of "inferior" courts.)

Whether one adopts the broad view of stare decisis reflected by Casey or the narrower approach we sketch out, one cannot implement stare decisis in any form without having clear answers to two questions: First, what, precisely, did the prior ruling decide? Second, what kinds of developments, in changed Court personnel, or subsequent rulings by the Court, or reliance by citizens and institutions, count in favor of or against affirming the earlier ruling?

We will take up these questions in a subsequent column, using the debates over Bakke and Bowers to sort out some of the hard issues.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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