[Volokh] Eugene Volokh: "Respect for Precedents":

[notify at powerblogs.com]

Posted by Eugene Volokh:
"Respect for Precedents":
http://volokh.com/archives/archive_2008_04_13-2008_04_19.shtml#1208179640


   A [1]New York Times editorial asserts:

     Supreme Court nominees present themselves one way at confirmation
     hearings but act differently on the court. That makes it difficult
     for senators to cast informed votes or for the public to play a
     meaningful role in the process.

     The study -- with the unwieldy title âAn Empirical Analysis of the
     Confirmation Hearings of the Justices of the Rehnquist Natural
     Courtâ -- published in Constitutional Commentary, looked at how
     nine long-serving justices answered Senate questions, and how they
     then voted on the court. While it does not say that any nominee was
     intentionally misleading, it still found a wide gap.

     Justices Antonin Scalia and Clarence Thomas, for example, told the
     Senate that they had strong respect for Supreme Court precedents.
     On the court they were the justices most likely to vote to overturn
     those precedents. Justice David Souter deferred more to precedent
     than his Senate testimony suggested he would....

   Well, I looked at [2]the study, and I'm not sure I'm quite persuaded
   by how it categorizes the data. Here, for instance, is Justice
   Scalia's testimony about precedent that the study reports in an
   Appendix, and that led the student researchers to give Scalia a high
   precedent-respect score:

     Scalia: Stare Decisis/Precedent

     [32] The Supreme Court is bound to its earlier decisions by the
     doctrine of stare decisis in which I strongly believe.

     [37] Q: Well, what weight do you give the precedents of the Supreme
     Court? A: It depends upon the nature of the precedent, the nature
     of the issue. Let us assume that somebody runs in from Princeton
     University, and on the basis of the latest historical research, he
     or she has discovered a lost document which shows that it was never
     intended that the Supreme Court should have the authority to
     declare a statute unconstitutional. I would not necessarily reverse
     Marbury v. Madison on the basis of something like that. To some
     extent, Government even at the Supreme Court level is a practical
     exercise. There are some things that are done, and when they are
     done, they are done and you move on. Now, which of those you think
     are so woven in the fabric of law that mistakes made are too late
     to correct, and which are not, that is a difficult question to
     answer. It can only be answered in the context of a particular
     case, and I do not think I should answer anything in the context of
     a particular case.

     [45] Q: [A Supreme Court Justice] said that a precedent might be
     less authoritative if it had stood for a shorter period of time or
     if it was a decision by a sharply divide court.... Would you agree
     with that general sentiment? A: Well, I think the length of time is
     a considerably important factor. The Marbury v. Madison example
     that I gave in response to [a previous question.] I am not sure
     that I agree with [the Justice] that the closeness of the prior
     decision makes that much difference. I mean, if Marbury v. Madison
     had been 5 to 4, I am not sure I would reverse it today. But I can
     understand how some judges might consider that that is an
     appropriate factor as well. I agree -- I certainly agree with the
     former. The latter would not have occurred to me, but maybe.

     [104] I agree with the statement that longstanding cases are more
     difficult to overrule than recent cases.... [A]s Iâve said, some
     cases that are so old, even if you waived a document in my face
     proving that they were wrong when decided in 1803, I think youâd
     have to say, sorry, too late.

   This is not a solid pro-precedent view, it seems to me: Rather, it's
   one highly general and banal pro-precedent statement ("The Supreme
   Court is bound to its earlier decisions by the doctrine of stare
   decisis in which I strongly believe," which is surely true, given that
   in the overwhelming majority of cases all Justices follow stare
   decisis simply for pragmatic reasons), followed by three statements
   expressing respect for old precedent.

   My impressionistic sense of Justice Scalia is that he certainly is
   respectful of old precedent, even precedent considerably younger than
   Marbury. Justice Thomas, for instance, wrote a separate opinion in
   favor of overruling the Court's 1798 Ex Post Facto Clause decision in
   Calder v. Bull; Justice Scalia did not join that. The great bulk of
   Justice Scalia's votes in favor of reversing precedent have focused on
   newer precedent (unsurprising, partly because there's a lot more newer
   precedent, and partly because Justice Scalia is big on tradition).

   But in any event, I wouldn't count this testimony as strongly
   pro-precedent in any absolute way; and I don't quite see how one can
   sensibly compare it to the other Justices' statements on precedent,
   which is what the study purported to do. If each statement could be
   fairly boiled down to a simple "for precedent" or "against precedent,"
   then maybe such comparisons could be made (though I doubt it). But if
   I'm right that Justice Scalia's statements were far from such simple
   assertions, and instead distinguished different kinds of precedents,
   then I don't see how the survey can sensibly give Justice Scalia a
   high pro-precedent score. (Justice Thomas's statements are likewise
   hard to categorize as solidly pro-precedent; the study actually put
   Thomas's views nearer the middle of the Justices', but again I don't
   quite see how one can sensibly do that, given the qualified nature of
   the Justices' stated views on the subject.)

   There are lots of other possible problems here, some of which the
   article quite candidly delves into on PDF pages 33 and 34. But this
   problem alone should, I think, lead one to be quite skeptical of the
   New York Times assertions of a "wide gap" between Scalia's statements
   and his votes. (I should say that the broader point that Justices'
   votes are hard to predict from their confirmation statements does
   strike me as correct.)

References

   1. http://www.nytimes.com/2008/04/14/opinion/14mon3.html?ex=1365912000&en=c67d14f2ef249e9b&ei=5124&partner=permalink&exprod=permalink
   2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1086705#PaperDownload