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October 30, 2005
So, Do You Believe in 'Superprecedent'?
By JEFFREY ROSEN
AS he prepares for another Supreme Court confirmation battle, President Bush faces intense pressure to quell the uproar from social conservatives who feared that Harriet Miers was not a true strict constructionist.
Many conservatives say they hope that the new nominee will follow the lead of Justice Antonin Scalia and, even more, Justice Clarence Thomas, who has become a conservative hero because of his willingness to overturn many liberal precedents of the last 70 years, from Roe v. Wade to cases upholding the New Deal.
But social conservatives face a problem: a new theory of "superprecedents" that is gaining currency on the right as well as the left.
The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents - that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.
In response, Judge Roberts embraced the traditional doctrine of "stare decisis" - or, "let the decision stand" - and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.
If that is the case, Chief Justice Roberts would be at odds with the influential part of the conservative movement that argues that the Constitution should be strictly construed in accordance with the intention of the framers, regardless of the consequences. But the idea of superprecedents is more powerful than a simple affirmation of stare decisis. An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.
Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."
Before the Roberts confirmation hearings, Mr. Specter talked informally to several law professors, including this writer, who mentioned the theory of super-stare decisis, noting that Judge Luttig thought it was important that Roe had been repeatedly reaffirmed by different Supreme Courts, composed of justices appointed by presidents from different parties and confirmed by Senates controlled at times by Democrats and Republicans.
And Mr. Specter adopted this theory. At the hearings, he described their first courtesy call, in which he asked Judge Roberts about the theory of super-stare decisis.
During the hearings, Judge Roberts, who was serving on the United States Court of Appeals for the District of Columbia Circuit, declined to say whether he agreed that Roe was a superprecedent or even a "super-duper" precedent. But, he said, the Casey decision is itself "a precedent on whether or not to revisit the Roe v. Wade precedent." And he also noted that the court over the past 80 years had reaffirmed the idea that the Constitution protects a right to privacy.
Later in the Roberts hearings, Charles Fried, a prominent conservative legal scholar at Harvard, agreed explicitly that Roe was a superprecedent. As solicitor general under President Ronald Reagan, Mr. Fried had asked the court to overturn Roe. But testifying on behalf of Judge Roberts, he said that Roe had become a super-duper precedent that would not and should not be overturned, because it was reaffirmed in 1992 and extended in subsequent decisions protecting gay rights and the right to die.
"It's a big tree, but it has ramified and exfoliated," said Mr. Fried, and overturning it "would be an enormous disruption."
The theory of superprecedents is still so new that it has not been thoroughly debated. But since the Roberts hearings, prominent liberal academics have seized on the idea as their best chance in a generation for countering the claim of conservative "strict constructionists" that any precedent should be overturned if it is inconsistent with the original understanding of the Constitution.
At a panel discussion at the University of Minnesota this month, Michael Gerhardt of the University of North Carolina said that cases that have been accepted by the Senate, the White House and different political leaders over time should be considered superprecedents.
Mr. Gerhardt said it was hard to be confirmed to the Supreme Court today unless you accept, as Judge Roberts did, that the Constitution protects a right to privacy. "I think the cases upholding the constitutionality of the New Deal and the 1964 Civil Rights Act are also superprecedents," he said, along with cases striking down sex discrimination and upholding the Miranda warnings.
"It's clear that bedrock precedents are a very powerful force with lawyers," said Daniel Farber [EDIT: I know this professor, he's a well respected conservative/libertarian --Bobak] of the University of California, Berkeley, another panelist at the Minnesota conference. "If somebody had told me in 1968 that Republicans would make all but two of the Supreme Court appointments of the next 37 years and at the end of that time, Miranda would still be on the books, there would be a constitutional right to abortion, and all the Warren court's major decisions would still be there, I never would have believed it."
Still, many conservative scholars say they remain skeptical.
"The fact that something is a superprecedent doesn't give us a reason to stick to it if it's wrongly decided," said Randy Barnett of Boston University Law School in a response to Mr. Farber and Mr. Gerhardt at the Minnesota conference.
Other conservatives say they are alarmed by the embrace of superprecedents by Republican moderates. "This whole notion of superprecedent is puzzling, and it's hard to know what Arlen Specter means by it," says Terry Eastland, the legal commentator of The Weekly Standard. "A case like Roe is not accepted across the board. It's been quite a controversial decision from the beginning, and it really falls into the category of cases clearly open to discussion."
Indeed, as early as 1992, Earl Maltz, a conservative legal scholar at Rutgers, criticized the Casey decision for endorsing the idea that "if one side can take control of the court an issue of major national importance," it can protect its position from being reversed "by a kind of super-stare decisis."
And many liberal scholars also concede that Roe and Casey may not qualify as a superprecedent, because the abortion decisions continue to be hotly contested.
"To me, a bedrock precedent commands a kind of legal and social consensus that I don't think is true of Roe," Mr. Farber said.
Mr. Gerhardt agreed. "I think it's hard to argue that Roe is a superprecedent," he said. "Roe has been opposed by three presidents and probably a majority of the Senate right now."
In other words, even if the idea of superprecedent becomes widely accepted by senators, judges and legal scholars, there will be no end to the debate. The question of what decisions qualify as a superprecedent would keep the lawyers busy for years to come.
Jeffrey Rosen is a law professor at George Washington University.
