Who Is 'Stare Decisis', and What does Roberts Think of Her?

Corbis

"Thirty four times, the Senators and the Nominee mentioned stare decisis - the Latin term for letting existing precedents stand. By contrast, abortion, the subject on everybody's mind as Senators decide whether to confirm Judge John G. Roberts as Chief Justice, got only six mentions. That is no coincidence: While both sides claim they have no "litmus test" and cannot ask Roberts his views on abortion or the Roe v Wade decision that made it legal, they have got around the issue by asking him about abortion euphemisms such as stare decisis and privacy (11 mentions)."

The Roberts who answered questions for sixteen hours solid in the last forty-eight hours was very much the Roberts who emerged in his writings over the summer. He maddened the commitee's Democrats, delighted the Republicans and charmed most of both.

Despite some reservations I had, (see my posts Judge Roberts governed by Faith or Oath? and The Ghost of Pro Bono Past ) which I am still seeking answers to - I like Roberts. I think he will make an excellent Chief Justice. He has views which cannot be all immediately slotted into the common agenda for either political side. That in my mind is the true spirit of a highly educated conservative Chief Justice candidate, whose views become more liberal by the sheer virtue of having gained a broader knowledge, resulting in perhaps less extreme yet still conservative judgments. Read his 'I have no agenda' opening statement, which I found impressive.

He will undoubtedly defy predictions, taking an entirely different view to the safely predicted, on a lot of issues, and more importantly he will not be afraid to disagree with any of his prior opinions. He told the Senators he admired Justice Robert H. Jackson, nominated to the court by F.D.Roosevelt, for those very same reasons. Promting a hopeful: "Are you sending us a message" from Sen. Patric J. Leahy (D-Vt), the ranking Democrat in the commitee.

Marcus Aurelius points to a Supreme Court Justice Scalia's comment, made in California recently, and no doubt directed at Roberts:

"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?"

The overall impression was of a talented nominee who used his skills to avoid twin perils: revealing nothing of his views or revealing too much.

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He did however give a few glimpses: he repeatedly distanced himself from his conservative writings as a legal adviser to President Reagan, including a memo in which he had disparaged privacy as "amorphous", and a "so called right" not spelled out in the Constitution. He confirmed his belief, and emphatically endorsed that the Constitution protects the right to privacy, the legal underpinning of the nation's landmark abotion law, but refused to divulge the way he would rule on matters of voting rights, gender equity, fair housing, abortion, and the role of religion in public life.

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"It's a free country and the right to be left alone is one of our basic rights." was the answer Roberts gave regarding the end of life decision, and seemed to be adamantly oposed to discrimination against women. He supported the right to privacy in relation to contraception, and referred time and again to a 1992 Supreme Court ruling upholding Roe as "a valid precedent entitled to respect" adding that "...it is a jolt to the legal system when you overrule a precedent"; ...all very good signs I would say.

Finally, I was delighted to hear that John Cornyn (R-Tx) referenced a blog post by one of my favorite's The Volokh Conspiracy. The post written by Jim Lindgren is titled 'Roberts' Umpire Analogy is not quite as simple as it seems', formed a part of the Senator's first question, dealing with the three ways that Umpires can approach the task of judging balls and strikes. Jim posts an Update titled 'Cornyn asks Roberts about Blogpost...' Way to go Jim!!

Full transcripts of the Confirmation Hearings of the U.S. Senate Judiciary Commitee on the nomination of Judge G. Roberts to be the  Chief Justice for Monday September 12th are here, and Tuesday September 13th here. A great fun read.

Ann Althouse, the divine and formidable law blogger on Althouse, has a post which absolutely touched a nerve the very moment I read it, but see her readers' comments, (who all happen to be male) none have got the point:

"Some people think the baseball metaphor [in Robert's opening statement] was a wonderfully folksy touch that will reach out to ordinary Americans.

You know what my first reaction was? Great, a sports metaphor. The man is accused over and over of not caring about women's rights and the first thing that comes out of him is a sports metaphor. For decades, I have negatively judged men who, speaking to a general audience, fall back on a sports metaphor. It says: I come from the world of men. My reference points are men's things. I will speak in a way that will make men feel welcome and at home, and women can come along if they've taken an interest in the same things.

And you needn't tell me about all the women who care about sports or how important sports are. Sports are exactly as important and sex-related as fashion. And think how you would have felt if John Roberts had built his little homily around a fashion metaphor."

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Well Ann, I completely understood, and wholeheartedly agree. In fact I had an immediate reaction of 'absolutely, my feeling precisely' when I read it. It does however seem to be impossible to explain it to the boys, so perhaps the feeling (utterly mutual) is a 'girl thing'. I know it's sometimes impossible to comprehend why it flies in the face of the opposite gender, but some things simply do, which is why our job is made so much harder. It should not be a matter for the boys to feel the need to defend, it is simply the way we feel. Period. Sports analogies are for men, and they are overused. Women are not concerned whether this is a slight, in fact the opposite is true, we simply don't care for those kinds of analogies. To be truly offended, we would have to care. We are not asking for John Roberts to suddenly give a 'Chanel' analogy, we are simply saying that apart from being overused and dreary to the female perspective, sports analogies have an adverse effect on women. Had the commitee been made up of 99% women ( the opposite is true), that paricular comment would have resulted in a simple "Huh?". Period. Nothing to defend, nothing to attack, it's a simple fact.

Update: Check out Professor Bainbridge's site 'Mirror of Justice" and his post 'Strang on Originalism and Precedent'  with this article, by Ave Maria's Prof. Lee Strang. It should be of interest to those like myself, who have been following the discussion about Catholic judges, stare decisis, and cooperation with evil. See my previous posts:  Judge Roberts governed by Faith or Oath? and  The Ghost of Pro Bono Past . Here is the chosen abstract from "An Originalist Theory of Precedent":

There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.

In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.

I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.

I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe are the concepts of the common good and authority, and the process of making natural law effective in society. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.

Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion.

 

Comments

[Anastasia Richards]

I thought that this article was very well written. Since my sopohmore year in high school I've been very interested in many things like this. this was also very informative to my US History project and the picture of the statue of liberty was a great addition to my project!!!!!

[panasianbiz]

I stumbled across your blog while I was doing some online research. As someone who has had the privilege to travel rather extensively and to live in various Asian countries as well, I well understand the ramifications of culture shock. May all of us who have experienced it at last adjust!

[Alexandra]

Ken, I have just now posted a long comment on your site. So in case it takes time to register, I am letting you know. You are also going straight onto my Blogroll NOW.

Having just spent a considerable amount of pleasure-filled hours on your site, I will attempt to catch up on some of my own posts, before my readers think I have given up...call me old fashioned if you like....

[Alexandra]

I am now going to get a cup of something hot, put my fluffy slippers on, put my feet up, and begin to read the read.... I am beginning to look forward to your anecdotes, they really are brilliant, and incredibly witty. They should be published in a compilation of short stories.

The only thing that concerns me is that your Blogger site seems to take forever to register a comment. I posted one a couple of days ago on your profile, which I enjoyed reading, but I don't think it is on your site yet. I don't know how long it will take to register, so don't think me rude?

BTW it is simply Alexandra, I believe it is only in the Russian culture that the father's name is given as a middle name or rather as a part of the surname.

[Kenny Pierce]

Come to think of it, do Serbs even use patronymics? Just realized I don't have any idea...my wife has spent time in Poland (which explains why I have a daughter named Kasia Krystyna) but I personally have no experience with Eastern Europe culture that isn't Russian.

[Kenny Pierce]

LOL, boy, does that buffet vignette bring back the memories of my own culture shock!

Here's you another example, from Kazakhstan and my recent adoption saga. (It's a bonus anecdote since it didn't make it onto my blog with the rest of the adoption stories.) As a young Southerner, I was taught that gentlemen in crowded public transit (on the rare occasions when public transit is available) yield their seats to others when there aren't enough seats to go around. Standard order of priority, as I was taught in childhood, is:

1. Old people, the handicapped, and pregnant women.

2. Ladies who are trying to keep up with small children.

3. Other ladies, including young women who are, so to speak, old enough to be "out" -- not that we have debutantes anymore, but still you can tell the difference between a girl and a young woman.

4. Adult men.

5. If there are still seats left, the well-mannered teenaged boy may sit down. (Which is a joke since "well-mannered teenaged boy" is very close to a contradiction in terms, but we parents do our best.)

At any rate, such a concept seems absolutely unheard of in the C.I.S. (former Soviet Union, that is), or at least in Kazakhstan. But, in harmony with your suggestion of being civilized for my own satisfaction even if it bemuses those around me, when in Kaz I still yield my seat on the ubiquitous buses as I was trained to do back in the South of my childhood. My two newly adopted daughters (18 and 13) think this is very strange and fascinating, but they get a kick out of seeing me stand up and offer my seat to a stranger, and watching the expression on the stranger's face.

But the anecdote I want to tell is specifically for your sake, because you'll enjoy it more than most people. On one hour-and-a-half bus ride to a remote little village, the bus filled up, and then a woman flagged down the bus. I got up and offered her my seat, drawing as always plenty of stares, and then as the bus jounced along I stood there in the aisle bracing myself with one hand and holding with the other hand a parcel I happened to have with me. And then a different lady who was sitting a row behind where I was standing leaned forward and tapped me on the arm to get my attention (which is also not done), smiled -- and offered to hold my parcel for me.

So I think you're right that thoughtfulness can elicit thoughtfulness in return, even where a local code of manners fails to encourage it.

P.S. So do you go by "Sasha" among close friends? (And since we're on the subject of politeness, shouldn't you tell me your patronymic so that I can address you properly?)

P.P.S. Given your upbringing and the interests you list in your profile, I think you'd probably get much more enjoyment than do my American friends out of my clueless dealings with the babushki in that same remote little village's tiny Orthodox church...when you have ten minutes or so, go read the "Two stories" post and then tell me what you think. I'd love to hear your comments. I think I managed to set it up to where clicking on my name for this comment will send you to that story.

[Alexandra]

For the first time ever, I have had someone take the trouble and time to explain this to me with such clarity. It has been such a thorn in my side, ever since I fell in love with New York some fifteen years ago, and couldn't understand why, when I loved IT so much, I understood ANY one of the so called 'Southern' group of cities much better. I felt more at ease with my friends in Dallas, and L.A. (although the pace was a little too relaxed) and less intensely stressed in social environments.
I will never forget my first social experience in New York as a twenty something year old, invited to a dinner party, which happened to be a buffet, in a very prestigious Manhattan apartment of a friend of mine.
I arrived like a lamb to slaughter, and was at first completely oblivious to the what I would later on that evening deem to be very backward set of social etiquettes, practiced by the invited gentlemen.
All went well, until the food appeared, at which point all the men (first), rushed to the buffet table, as if though they had not been fed for at least a week, promptly served themselves, and swiftly grabbed whatever seat was available in the apartment, on occasion even slightly nudging anyone in their path. The occasional lady would pepper the queue, who would then equally 'grab' any seat available, without a single man getting up to offer his seat. I watched in horror, at this spectacle, and found myself, after what seemed to be a short moment, but must have been at least fifteen minutes of glaring in disgust, standing completely alone in a room full of 'munching' men, and women (who seemed to have to compete for the best 'sitting spot', and having finally sat down, had a triumphant glare of a star athlete having won first prize in a hundred meter sprint).
So, there I was standing there, for all to see, it being my turn to sprint, but having suddenly woken up to the fact that there was not a single seat available anywhere other than possibly the ladies bathroom (LOL).
So like all innocent lambs to slaughter, I gathered the courage, to help myself to the buffet, with a now newly found delirium that I had misjudged the situation and that of course once I am standing there with full plate in hand, any number of gentlemen would trip over themselves to offer me a seat. The mere fact that I did not see a single one of them, holding two plates in hand at any given time, should have prompted the required hint to what was about to occur, but as I said my faith in what I considered polite gentlemanly behaviour worldwide, prevailed.
Needless to say, the dreaded moment came, and I, together with some other unfortunately 'slow sprinting' women having appeared late on the scene, remained standing until, one of the now sufficiently fed male species got up, not requiring his seat anymore!
It reminded me of a documentary on the National Geographic Channel, titled 'Lions feeding...'
I have of course dozens of different examples since, of such behaviour, which now seems to be still prevalent in certain circles, but slightly less in others, which is why the analogies you made hit the spot, and confirmed what the majority of my male friends have tried to explain to me.
I still believe that the only way for a man to fight what I would call an imbalance in the perception of a deemed to be lady, and the reality of the 'Froghorn' brigade (Vanessa's generation in a way included, as theirs is a nuance of the same virus), is to vehemently stick to one's gentlemanly principles, and unfortunately TAKE THE PROVERBIAL ABUSE of those less fortunate to know any better.
I will of course eat my words, when my now 'still innocent', and oblivious to it all, six year old, turns into a blossoming Vanessa, and starts giving me lectures on the 'sports analogies'. I will still be grateful for small mercies, because if she turns into a 'Cruella de Vil' militant nanny from hell, I feel my libertarian attitudes will fly out of the window a la Peter Pan, and I shall want to lock her up until she is a twenty-one year old (by now frustrated, and hating me) young lady, who due to her internment has been spoon-fed the classics, and has developed the attitude of a very modern version of the eldest daughter in Jane Austin's 'Pride and Prejudice'.

[Kenny Pierce]

I think you're quite right about the European / "Yankee" American / "Southerner" distinction. European feminists and American feminists seem to be quite different animals to me because...well, because it's very difficult to imagine a Princeton feminist saying, "Vive la difference."

I grew up in Oklahoma, and I was always expected to hold the door open for a lady, to be a gentleman, etc. Then I went off to college at Princeton, and about three weeks after I got there I held a grocery store door open for a woman who got there just as I did, and was treated to a two-minute, profanity-laced diatribe on how she was perfectly physically fit and quite capable of carrying out the none-too-demanding task of opening a door for herself, thank you very much. I don't think I've ever been so taken aback in my life. At any rate, I diligently retrained myself to the different standards in the Northeast; and it's probably worth noting that feminist friends at Princeton explained to me, among other things, that the use of sports metaphors implied a callous indifference to to the equal value of the female experience. And I do understand their point, and while at Princeton tried not to be too sports-dominated in my speech.

But what was, in my and Ann's generation, a gender gap, has (thanks to Title IX) become now more of a generation gap. (That's what I was trying to explain to Ann, but I clearly didn't do a very good job and came off as slamming her for being an old woman.) The young women of my current acquaintance are young and friendly and Texan, which means (a) they appreciate having a door held open for them, (b) they're self-assured and independent but generally like the idea of being female, and (c) they think the idea that sports are an intrinsically masculine domain is at best silly and possibly offensively sexist. My daughter has decided to drop basketball and concentrate on drama, but if you tried to tell her that that was a good choice "for a girl" she'd be pretty honked off. So, if Roberts uses a sports metaphor, then the relatively militant feminists of my own generation are (like Ann) offended by his insensitivity. But if he carefully refrains from using a sports metaphor when in the presence of The Ladies (as Ann seems to want him to do), then the relatively militant 20-something feminist who used to be my kids' nanny, is offended by his condescension. He's just not going to be able to keep from offending SOMEBODY...it's humanly impossible to give a speech that says anything substantive and doesn't offend either Al Sharpton, or James Dobson, or the ACLU, or the Christian Coalition...somebody'll get honked no matter what.

So you just try to pay attention to the people around you as individuals and adjust to their preferences as soon as you learn them. When I talk to young Vanessa I'll use sports metaphors freely but when I post on Ann's site I'll try to remember to avoid them. I don't know what else a guy can do. (Other than try not to be unnecessarily mean to people, of course.)

[Alexandra]

Nice of you to pop over Ken. And no, three paragraphs are not too long (LOL). I am glad you don't want to fight, because I thought you were a little mean to Ann, and unneccessarily so. And for goodness sake, you are Texan after all, charm should flow through the veins!
Now, about those Lady Longorns though, does that refer to the 'hairy chest' brigade or the Austin feminists? Never understood either, but it seems to be an obsession somehow ... Comming from Europe, I love the girl thing, AND I like having the door held for me, AND I insist on polite and respectful address, and that goes for both genders. All of which I found to be present in Texas, and VERY SCARCE in my darling New York..) However, yes I have run into the reactions you mention, but I have to admit mostly in the US.
You know when you say: "...So I've actually been trained (by bad experience) to avoid the stereotype as sexist." I immediately soften, because I realize that there is a huge amount of conditioning here, and I think perhaps there are some men (and hopefully women), that would like to go back to the old fashioned: "It's O.K. "for girls not to get sports", it doesn't make them any less equal, or any less bright, or any less capable. It simply makes them interested in other things, and again it is O.K. for those things to be different to the interests enjoyed by the boys.
Reading between the lines, and I am really going out on a limb here, I think you actually may be one of those people of the old school, but you have simply learned the hard way, (no doubt having got cought yourself @ the Drag in Austin (LOL). And you know, when the dust settles, both sides are to blame. But nothing will ever change if the Lady Longhorns are still out there... (do they really have hairy chests?)
You see, now YOU have made me ramble on too long on my own blog...we have to talk about Roberts later...

[Ken Pierce]

Alexandra,

I like your summing up of what Roberts did and didn't reveal...but then I'm no expert, so that particular accolade probably doesn't carry much weight with you. I think you're exactly right that the questions were almost all abortion questions with the thinnest of euphemistic veneers (at least, the questions I saw, though I didn't see that many of them).

Am I correct in thinking you're saying that Ann Coulter's seemingly unhinged rants about how Roberts is going to prove "unreliable," and about how the Roberts nomination should therefore be seen as an unforgivable betrayal of Dubya's power base, may well turn out to be factually sound? (Not that that's necessarily a bad thing.) That's what I'm gathering from, e.g., "...whose views become more liberal by the sheer virtue of having gained a broader knowledge..." (Do you really mean to imply that conservativism and knowledge are to some degree mutually exclusive? [just teasing you])

Won't argue the Ann Althouse thing here (I popped over from her comments because I was tickled by the title of your post, not because I wanted to fight), but there is something you should know. I grant you that I live in Texas, where football is king to the point of societal pathology, but still, of the five or six people I know who are truly enraged by the "girls don't get sports" stereotype, every single one is a woman herself. So I've actually been trained (by bad experience) to avoid the stereotype as sexist. Have you not run into that reaction? Maybe it really is peculiar to the Lone Star State -- or even simply to Austin (my home town, which has long been passionate about its women's college sports) and College Station (which has a high percentage of people driven insane by football passion, there's no kinder way to put it). Anyway, if you wander down to the Drag in Austin, I would avoid saying that bit about the "girl thing" too loudly for fear that some Lady Longhorn (how's THAT for an incongruity) will slap you silly.

Is three paragraphs plus a sentence too long? ;-)