Tuesday, January 10, 2006

Alito talks 'stare decisis'

Senator Schumer's question segment today in the Alito hearings was very entertaining. Schumer wanted Alito to say flat-out whether the Constitution included a right to abortion, but the judge properly and repeatedly declined to give an answer to that constitutional issue. Schumer spent a long time on stare decisis, and he attempted to show that, although Alito professes respect for the doctrine, the phrase is used so differently by different people that Alito's "respect" doesn't necessarily mean he won't hesitate to overturn numerous rulings if he so wishes.

In particular, Schumer noted Clarence Thomas, who claimed to have great respect for precedent but has voted to overturn numerous rulings, prompting fellow justice Scalia to say that Thomas essentially doesn't believe in stare decisis. And as Schumer also mentioned, former nominee Robert Bork, whom Alito praised in the late 80's, also dismissed the doctrine as not all that important.

This is interesting because it may be stare decisis that distinguishes one praiseworthy (i.e., "conservative" or "originalist" or "strict constructionist") judge, like Justice Scalia, from another, like Justice Thomas. While Thomas (and probably Bork), it seems, will rule on an issue based solely on its constitutionality and without regard to past rulings, judges like Scalia, the late William Rehnquist, and - I suspect - Sam Alito seem to at least leave open the possibility of upholding a past ruling they know was wrongly decided simply out of respect for the importance of precedence and stability in our legal system. That's stare decisis, and I think it should be invoked very cautiously - if at all (I may be with Thomas: stare decisis sucks) - when a bad precedent is involved (Rehnquist eventually, and perhaps reasonably, did it with the Miranda ruling). Roe v. Wade, for instance, is one pathetically bad precedent that hasn't done anything but create turmoil, and even the most stare decisis-obsessed justice should vote to overturn it.

For more, see yesterday's Alito post, CNN's coverage, Townhall's "Alito Central," and more on Alito himself.

Update: David Limbaugh has a good column on the Alito issue.

Plus, Andrew at Confirm Them: "When utterly convinced of former error, isn’t a Supreme Court Justice bound by oath to discard a previous misinterpretation of the Constitution? The answer should be extremely obvious."

Andrew links to Professor Matt Franck on NRO, who defines stare decisis for us: "Stare decisis means taking precedents seriously as representing the best thought of the past on similar questions once again before the Court; it also means following those precedents when possible, especially in doubtful cases, for the sake of stability. It...cannot mean prizing stability over a considered judgment, free of doubt, about the meaning of the Constitution."

So if you're certain that a past ruling was incorrect, you vote to overturn it; otherwise, you let it stand. Franck's definition seems perfect to me.

More from Franck (on Roe v. Wade and precedent). And here's an interesting critique of Alito's performance today.

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