Stone on Roberts, Alito, and stare decisis

Geoffrey R. Stone

October 23, 2007

In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as first-rate lawyers, as masters of legal craftsmanship who are committed to the principle of stare decisis -- the principle that justices must follow precedent in an honest and forthright manner.

John Roberts assured the Senate Judiciary Committee that judges must "be bound down by rules and precedents." Invoking Alexander Hamilton and James Madison, he affirmed that "the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability," and "integrity in the judicial process." Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly "unworkable" over time. But in general, "a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."

Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a fundamental part of our legal system." This principle, he explained, "limits the power of the judiciary" and "reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, is "not an inexorable command," but there must be a strong "resumption that courts are going to follow prior precedents."

It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.

Disturbingly, John Roberts's and Samuel Alito's actions on the court now speak much louder than their words to Congress. During the 2006 term, Roberts and Alito repeatedly abandoned the principle of stare decisis, and they did so in a particularly insidious manner. In a series of very important decisions, they cynically pretended to honor precedent while actually jettisoning those precedents one after another.

Let me offer just a few examples. In Gonzales v. Carhart, the court, in a 5-4 decision, upheld the constitutionality of a federal law prohibiting so-called "partial birth abortions," even though the court had held a virtually identical state law unconstitutional seven years earlier. As Justice Ruth Bader Ginsburg rightly observed in dissent, the majority, which included Justices Roberts, Alito, Scalia, Kennedy, and Thomas, offered no principled basis for ignoring the earlier decision. The only relevant change was Alito for O'Connor.

In Federal Election Commission v. Wisconsin Right to Life, the same five-justice majority held unconstitutional a provision of the Bipartisan Campaign Reform Act that limited political expenditures by corporations, even though the court had upheld the same provision only four years earlier. As Justice David Souter rightly observed in dissent, Chief Justice Roberts's opinion offered no principled basis for disregarding the earlier decision.

In Hein v. Freedom from Religion Foundation, the same five-justice majority, in an opinion by Justice Alito, held that individual taxpayers had no "standing" to challenge the constitutionality of the Bush administration's program of faith-based initiatives as violative of the Establishment Clause, even though the court had held some 40 years ago that taxpayers do have standing to challenge federal expenditures on these grounds. As Justice Souter rightly observed in dissent, Alito's argument that the earlier decision was distinguishable because it involved a challenge to a legislative rather than an executive program has no basis "in either logic or precedent."

These are only three of many examples I could offer. Roberts and Alito billed themselves as legal craftsmen who would be guided not by personal ideology, but by a respect for the rule of law. They have now proved otherwise. This does not bode well either for the Supreme Court or for the nation.