How much should precedent bind judges?

"A judge who thinks affirmative action is unconstitutional but who is also strongly influenced by principles of stare decisis might decide not to overrule the earlier case, but to limit it, and not extend it in the next case," Professor Sherry says.

Upholding precedent fosters stability and predictability in the law. And it enhances the legitimacy of the court by demonstrating to the nation that the justices themselves accept and respect the court's own opinions.

On the other hand, if the high court adhered strictly to precedent, it would be unable to correct mistakes in constitutional interpretation, and future interpretation would only perpetuate the errors. For example, Plessy v. Ferguson, the 1896 case upholding "separate but equal" racial segregation, would have continued as the law of the land had the Supreme Court not overruled it in the 1954 landmark decision Brown v. Board of Education.

Stare decisis means different things to different jurists. Some are extremely reluctant to overrule precedent, while others place a higher priority on correcting what they view as fundamental errors in constitutional interpretation by the high court. Still others seem ready to invoke stare decisis to protect rulings they favor, but not those they oppose.

Doug Kmiec, a constitutional law professor at Pepperdine University School of Law in Malibu, Calif., notes that the O'Connor decisions fall on both sides of the conservative-liberal divide. While liberals will seek to invoke stare decisis to protect abortion rights and affirmative action, conservatives want to preserve school vouchers and rulings on federalism.

"If there is a notion of settled law anchored in stare decisis or principles of judicial restraint, then neither side of that ledger should be open to question," Professor Kmiec says. "I fear, however, that in the confirmation questions, the two sides will not see that they are talking past each other on these issues."

In many ways, Supreme Court confirmation hearings are a carefully orchestrated dance in which nominees engage in a form of political seduction by offering hints of how they may rule on particular hot-button cases - but never enough specifics to undermine the independence and credibility of the judiciary.

Mr. Bush's nominee will probably spend much of the summer rehearsing graceful ways to sidestep pointed questions about specific cases and issues. Such dodging is essential to avoid the appearance that a nominee is making a political pledge to rule a certain way in exchange for support from particular senators. But it can also be motivated by a desire to withhold details that might be used as ammunition against the nominee.

"Nominees always want to say as little as possible and give away as little as possible," says Professor Gerhardt. "Every nominee will avoid talking about anything they consider to be either a pending case or a case likely to come before the court."

But he says that senators may legitimately press a nominee to explain in detail the process he or she would use to decide whether to uphold or overturn legal precedents.

"The question of stare decisis is one of the most significant questions that faces any new justice," Gerhardt says. "To what extent do you want to accept what has come before? To what extent do you feel free to question it? Those questions are confronted by every nominee, and everyone answers them differently."

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