THE SUPREME COURT, THE CONSTITUTION, AND PRECEDENT:
Some Comments on the Amars' Analysis

By JOANNE MARINER

Monday, Jan. 06, 2003

The doctrine or the document? Professors Akhil Reed Amar and Vikram David Amar pose the question in two recent columns. Both Part One and Part Two of the series assess the extent to which the Supreme Court should defer to its previous decisions in ruling on current cases.

Arguing in favor of a relatively weak form of stare decisis--one that accords only limited deference to the Court's past case law--the Amars reason that the Constitution itself should take priority over the Court's previous interpretations of it.

Because, as they put it, the document outweighs the doctrine, the Court should not be unduly deferential toward its past decisions. Rather than affirming plainly mistaken rulings in the name of stare decisis (the principle of respect for past precedent), the Court should reserve its deference for the Constitution itself.

The Amars' belief in stare decisis' limited role in constitutional adjudication is undoubtedly appealing. Who would really want the Court to blindly apply judicially-created legal doctrines while losing sight of the constitutional text? Nonetheless, the Amars' analysis is not entirely satisfying.

The Amars versus Casey

In setting out their proposed approach, the Amars contrast it with the Supreme Court's 1992 decision in Planned Parenthood v. Casey, a ruling that they suggest exemplifies the Rehnquist Court's general attitude toward precedent.

In a joint opinion by Justices O'Connor, Souter and Kennedy (joined in parts by other justices), the Court in Casey explained that the principle of stare decisis was a powerful factor in its decision not to overrule Roe v. Wade. While the authors of the opinion did not explicitly state that, given the chance to decide the case on a clean slate, they would have ruled differently, their choice of language strongly implies this possibility. (The opinion makes reference, for example, to the fact that some justices may have felt a "personal reluctance" to affirm Roe.)

That the Casey decision is more about adhering to past precedent than it is about affirming the right to abortion seems obvious from the opinion's first sentence. There, speaking in orotund tones, the Court announces that "Liberty finds no refuge in a jurisprudence of doubt."

Rejecting doctrinal uncertainty, the Casey joint opinion embraces the stability offered by the principle of stare decisis. Under the opinion's stated reasoning, in fact, the very concept of the rule of law requires the continuity over time engendered by a healthy respect for past precedent.

Toward the end of its disquisition on precedent, the Casey opinion concludes that simple disagreement with the holding of an earlier case provides an insufficient reason for overruling the case. Instead, in the joint opinion's stated view, a decision to overrule a previous holding must "rest on some special reason over and above the belief that a prior case was wrongly decided." (Although the Casey Court insists that this view of precedent has been reiterated in previous Supreme Court rulings, the feebleness of the authority it cites--two dissents--suggests that the view is not nearly as well-established as the opinion pretends.)

The Amars, who take a much stronger view of the primacy of the constitutional text, are unconvinced by the reasoning of the Casey joint opinion. Past decisions, the Amars assert, should enjoy only a "rebuttable presumption of correctness."

Thus, on the Amars' view, erroneous past decisions--that is, cases shown to be wrongly decided--should in principle be overruled.

Casey: The Bush v. Gore of the 1990s?

The Amars are correct in noting that Casey represents the Rehnquist Court's most extended analysis of the nature and value of the principle of stare decisis. But, even given this compelling starting point, it would be wrong to assume that Casey accurately represents the Rehnquist Court's general approach to precedent. Indeed, by taking on Casey, the Amars may be picking a fight with a straw man.

Casey is a very unusual case. It may be so unusual, in fact, as to be one of those freakish, sui generis rulings that have little impact on the subsequent development of the Supreme Court's jurisprudence.

Second, even a cursory reading of the Casey opinion reveals warning signals that suggest that the Court's reasoning will have extremely limited future application. The Court repeatedly emphasizes that Roe v. Wade, the decision whose continued viability is under discussion, is not your typical, run-of-the-mill Supreme Court ruling, but rather a sort of superstar among Court precedents.

Roe, according to Casey, is an "intensely divisive controversy," a "watershed decision," a ruling that has provoked "sustained and widespread debate," and a constitutional precedent on the order of the Court's landmark racial segregation and contractual freedom cases. Its overruling would, in short, be a veritable earthquake in the legal landscape.

Importantly, Roe's celebrity status is not mentioned as an aside, but is fully integrated into the joint opinion's reasoning. From the opinion's perspective, whether or not Roe was correctly decided, its national prominence and importance mean that only the most convincing reasons could justify overturning it.

Finally, the strength and sincerity of the Casey's devotion to stare decisis principles is cast into doubt by the Court's cavalier treatment of Akron v. Akron Center for Reproductive Health and Thornburgh v. American College of Obstetricians and Gynecologists. Finding that these two decisions are inconsistent with the revised approach to abortion rights that is establishing, Casey overrules them, in relevant part, without even a nod in the direction of stare decisis analysis.

Post-Casey Rulings

My admittedly limited review of subsequent cases tends to confirm this narrow reading of Casey's relevance. Although Casey is occasionally cited by subsequent Courts, I see little indication that the Casey Court's purported reverence for the principle of stare decisis has materially affected the development of the Rehnquist Court's case law.

Instead, over the past decade, the Rehnquist Court has shown itself to be no less eager than prior courts to repudiate past Supreme Court decisions with which it disagrees. In its Establishment Clause jurisprudence, notably--with cases such as Mitchell v. Helms, in 2000, or Agostini v. Felton, in 1997--the Court has freely set aside earlier precedents.

The Court's most recent explicit overruling, which occurred just last June, is instructive. In deciding Ring v. Arizona, a case involving the death penalty, the Court repudiated its 1990 ruling in Walton v. Arizona.

Without even citing Casey, let alone engaging in any of Casey's agonized soul-searching over the value of past precedent, the Ring Court dispatched stare decisis considerations in a few efficient sentences. Quoting a case decided in 1989, the Court stated simply (and rather unhelpfully) that "We have overruled prior decisions where the necessity and propriety of doing so has been established .... We are satisfied that this is such a case."

The Amars are certainly correct, whether or not Casey accurately represents the Rehnquist Court's views on stare decisis, that the stated reasoning of the joint opinion is unconvincing. If a precedent is plainly erroneous, the Court should not require further, special reasons for overruling it. But even here, I would insist, the process of evaluating past precedent is more complex than the Amars acknowledge.

Where the Amars' argument falters is in the facile dichotomy it establishes between the document and the doctrine: the Constitution and the Court's case law.

This stated dichotomy, which opposes text and interpretation, obscures the fact that respect for stare decisis principles does not elevate interpretation over the text itself. Rather, it simply allows past interpretations to influence present ones. Since the Constitution does not apply itself, the need for interpretation is inescapable.

All that stare decisis does is add a temporal dimension to the process of constitutional interpretation. It establishes a dialogue, so to speak, between present Courts and past Courts, and between present views of the Constitution and past views. (And surely the fact that the Supreme Court has nine justices who are replaced gradually over time reinforces the structural importance of this temporal dimension.)

An "erroneous" past ruling was not, of course, erroneous in the view of the Court that decided it. While the current Court may have a different interpretation of the Constitution's dictates, nothing proves that its interpretation of the text is inherently more accurate than the past Court's interpretation.

Its interpretation is simply more up-to-date, and, due to slow but continuous turnover in the Court's membership, presumably more consonant with currently prevailing social and political norms. While this should be a virtue, it is also, from the point of view of stare decisis, a limited one.


Joanne Mariner is a New York-based human rights attorney.

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