IT'S LATIN FOR "'CAUSE I SAID SO"

Defending The Indefensible (George F. Will, Washington Post, 10/23/05)

Miers's advocates tried the incense defense: Miers is pious. But that is irrelevant to her aptitude for constitutional reasoning. The crude people who crudely invoked it probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself.

OJ deals with this column here. This paragraph is so bizarre that I thought it could use some heightened scrutiny.

I have to admit, though, that I'm not sure what Will thinks he's saying, a perhaps telling oddity from such a careful writer. Saying that Miers is religious is, of course, a signal. But why is it a "crude" signal, and why think that it is only a signal about abortion? Isn't it, rather, a signal about religion? Conservatives, both crude and refined, are concerned about the place of religion in modern culture, or rather the lack of place, separate from worrying about abortion. As for abortion, the clearer signal would seem to be from those Miers' supporters who are saying that she is anti-abortion.

Will really goes off the rails when he says that overturning Roe would be "an unreasoned act of judicial willfulness as raw as the 1973 decision itself." Again, I'm not really sure what he's trying to say. Is he saying that any ruling overturning Roe would be "an unreasoned act of judicial wilfulness" or does that describe only a Miers' opinion overturning Roe? The confusion here doesn't seem to be mine, but rather Will's. In this column he suggests -- through George Bush's mouth:

[We] shall not know how my nominees would rule in the event -- an unlikely event -- that the court revisits the constitutional foundation of abortion rights established by Roe v. Wade in 1973. However, I will seek judicial nominees disinclined to concoct spurious constitutional mandates for their policy preferences, as I believe the justices did in Roe. On the other hand, the orderly development of constitutional law requires that justices be generally disposed to respect precedents, even dubious ones, if they have been repeatedly reaffirmed for decades.

Will understands the Roe was untenable as constitutional doctrine ("Roe, which discovered a right to abortion in the emanations of penumbras -- or was it penumbras of emanations? -- of other rights, was judicial overreaching, indistinguishable from legislating."), but seems to believe that it has survived so long that it can no longer be reversed. In other words, Will appears to believe, though he can't quite bring himself to say, that the Constitution can be amended by stare decisis.

Stare decisis is the Latin phrase lawyers use for the doctrine that once a court decides a question of law, it will not thereafter go back and revisit that question. It is, in some ways, ludicrous to consider this a "doctrine." The point of the law is to give citizens warning about what behavior is prohibited; to be clear and predictable. It should hardly require a doctrine to cause the courts, when construing the same law a second time, to reach the same result. That we do need such a doctrine tells us something about lawyers and judges.

Stare decisis applies, of course, not simply to a particular court, but also to the relations between courts. Lets take, for example, the federal court system. The country is divided into 95 federal district courts, with 650 judges. These are the federal trial courts. Judges in the same trial court recognize that they should keep their decisions consistent, so that the laws that people in Massachusetts, for example, must follow don't vary depending upon which judge hears their case. Judges within Massachusetts will try to defer to the decisions of other Massachusetts federal district judges, even if they might have reached another decision on their own. If, however, the second judge to reach an issue is convinced that the first judge was wrong, he may well disagree. Stare decisis applies, but lightly. On the other hand, for every case it hears, each district court is answerable to one of the 13 federal circuit courts of appeal. The circuit courts are charged with keeping the law consistent within their designated area (geographic for 12 of the courts, and subject-matter based for the 13th). Therefore, each panel of the circuit court (three judges sitting together on a case) will usually defer to the prior decision of a panel of the same court and cannot overrule that prior decision. That, too, is stare decisis. The district courts must follow the rulings of the applicable circuit court -- stare decisis there is mandatory. Usually, a precedent from an earlier panel will not be overruled except by all the judges of the court sitting on an appeal together (an en banc decision).

The circuit courts, however, because they are on a level, might choose to defer to each other, but need not. Stare decisis does not require the First Circuit to defer to a statutory interpretation from the Fifth Circuit -- nor is a district court in Massachusetts, in the First Circuit, required to follow precedent from an appeals court in a different circuit. That Fifth Circuit decision might be persuade the district court judge, but if it does not, he is not required to follow it. That brings us to the Supreme Court.

The Constitution provides that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Inherent in the idea of a Supreme Court is the idea that all of the inferior courts are required to defer to the Supreme Court's decisions. But must the Supreme Court defer to its own earlier decisions. The Constitution is silent on this point. As we've seen, though, there are good policy reasons for the Court not to lightly reject its own precedent. Predictability in the law is good. Not reinventing the wheel is good. Most of the time, if a panel of nine judges have looked at a question and resolved it, it is not likely that a second panel -- even if remote in time -- will come to a different conclusion. Stare decisis is good policy, and it is also a good predictor of how the Court would rule a second time even if not bound by precedent.

But lets go back to the Constitution. " "The judicial Power of the United States, shall be vested in one supreme Court." The judges of the Supreme Court hold their seats on good behavior and are replaced with new justices nominated by the President and confirmed by the Senate. Among other things, "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." From this it follows that though the justices change, the Court remains Supreme as to any question the judicial power may reach. The Supreme Court of today is supreme: it is not inferior to any previous Supreme Court. In other words, George Will's argument that today's Supreme Court is bound by the erroneous decision of a previous Court is contrary to the Constitution. If today's Supreme Court cannot reject a previous decision, than it is not Supreme but rather inferior to the earlier Court. The Constitution rejects this extreme form of stare decisis, which has never been the law. Otherwise, every Supreme Court would have the power to amend the Constitution as to any new issue, but be powerless to correct any previous "amendment" no matter how wrong it might have been.

There are nuances here. Because Congress can always change a statute if it disagrees with the Supreme Court's interpretation, the Court will usually not change a long-standing statutory interpretation, even if it would not now reach the same conclusion. This is not, however, a question of deferring to the earlier Court, but rather a show of deference to the imputed judgement of Congress. When it comes to the Constitution, the Supreme Court stands, with respect to its earlier decisions, as the district courts stand with respect to each other, or as one circuit stands with respect to its sister circuits. The earlier decisions will be more or less persuasive, as their reasoning merits. There is a value to predictability, and the previous decisions of the Court will always be the best predictor of future decisions. But if the current Court is convinced that a previous decision is wrong, it can and it must overrule the previous decision and assert its own understanding of the law as the Supreme Court of the land.

Posted by David Cohen at October 24, 2005 12:01 AM