How much should precedent bind judges?

A Bush nominee to the Supreme Court may be probed about whether he or she would overturn earlier high-court rulings.

Whomever President Bush nominates to fill Sandra Day O'Connor's seat on the US Supreme Court will inherit enormous power immediately upon confirmation.

It is the power to assume Justice O'Connor's role of breaking deadlocks in major cases. But perhaps more important, it includes the raw judicial power to overturn many of O'Connor's decisions, should four other like-minded justices agree to take up the task.

With high-court opinions on affirmative action, school vouchers, states' rights, and so-called "partial birth" abortion hanging in the balance, questions about the importance of upholding Supreme Court precedent will play a central role in upcoming confirmation hearings, legal analysts say.

That is, in addition to dodging the usual inquiries about how he or she might rule in an abortion case, or other culture-war flash points, a Bush nominee will probably face a prolonged and intense interrogation probing a candidate's views on stare decisis.

Stare decisis is a Latin term for the judicial principle of upholding an earlier high-court decision unless special circumstances exist to overturn it. The phrase literally means to stand by things decided.

To senators intent on divining a nominee's judicial leanings, questions that explore a prospective justice's thoughts about how and under what circumstances to uphold a legal precedent (or overturn it) could offer the Judiciary Committee, and the nation, an opportunity to gauge how a particular nominee might shift the balance of power on the high court - and ultimately shape the direction of American law.

"In a situation in which you can change the balance of the court, questions of stare decisis come to the forefront," says Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law at Chapel Hill. "Most people expect President Bush to appoint someone who will take the court in a different direction, and what that means is deciding cases not just differently but overturning precedent."

Power to overrule

While each of the nine justices casts but a single vote in each case, O'Connor, a centrist swing voter, has often delivered the decisive fifth vote. Now with her announced retirement, the newest justice will inherit not only the authority to cast the fifth vote in sharply divided cases, but also to cast the deciding vote to overrule existing precedents should four other justices agree to revisit any of the landmark 5-to-4 cases decided by O'Connor.

By tradition, a new justice who did not participate in earlier rulings is less bound by precedent than the justices who voted in those decisions. But there are risks every time the court authorizes an abrupt change of course.

As Justice Potter Stewart wrote in a 1974 dissent: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government."

He added, "No misconception could do more lasting injury to this court."

Suzanna Sherry, a constitutional law professor at Vanderbilt University Law School in Nashville, Tenn., says it can be difficult to predict how a new justice may vote when legal precedents are on the line. The justice's personal views regarding a case may not control the final outcome, she says.

"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.

Goes both ways

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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