Topic: Stare Decisis
Senator: Cornyn
Date: SEPTEMBER 13, 2005
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CORNYN: Well, I know that we've heard today about a number of terms, from stare decisis to pro hac vice, to pro forma -- the only one we haven't heard is res ipsa loquitor, and a number of other Latin phrases that we learned in law school.
But let me ask you about stare decisis.
CORNYN: I have heard fascinating discussion back and forth about the precedent and how you would deal with a case. Let's say the example of Roe v. Wade. Some have suggested -- law professors and maybe others -- that somehow that's a super-precedent, or in the words of our inimitable chairman, a super-duper precedent.
I think we're introducing new words to the legal lexicon as this hearing goes on.
But in all seriousness, if -- well, let me ask you this: Is stare decisis an insurmountable obstacle to revisiting a decision based on an interpretation of the Constitution?
ROBERTS: What the Supreme Court has said, in the Casey decision, for example, is that it is not an inexorable command. In other words, it's not an absolute rule.
And that's why they have these various cases that explain the circumstances under which you should revisit a prior precedent that you think may be flawed, and when you shouldn't.
CORNYN: I can -- excuse me. I didn't mean to interrupt you.
ROBERTS: I was just going to say: There are significant cases in the court's history, in the nation's history, where the court has revisited precedents, like Brown v. Board of Education, like the cases that overruled the decisions of the Lochner era.
CORNYN: And you started to make the point I was going to try to make next. And that is: Stare decisis did not prevent the United States Supreme Court from revisiting Plessy v. Ferguson, which established the separate but equal doctrine, or otherwise Brown v. Board of Education would never be the law of the land.
Stare decisis did not prevent the Supreme Court from overruling Bowers v. Hardwick and Lawrence v. Texas or Stanford v. Kentucky, in this recent term of the court where they said the death penalty for 17-year old murderers was unconstitutional -- Roper v. Simmons.
So would you agree with me, Judge, that this is a neutral principle? In other words, it's not a result-oriented principle, if there is such a thing.
And you have pledged to apply neutral principles, not result- oriented processes, in arriving at your decisions, if confirmed.
ROBERTS: That's right. It is a neutral principle. The factors that the court looks at in deciding whether to overrule prior precedent or not do not depend upon what the decision is or what area it's in, other than some various things we've talked about. For example, a statutory decision is much less likely to be overturned than a constitutional decision, just because Congress can address those issues themselves.
But the principles of stare decisis are neutral and should be applied in a neutral way to cases, without regard to the substance of the decisions being considered.
CORNYN: And when you said this morning, in response to questions about Roe v. Wade, that it is settled as a precedent of the court, entitled to respect under principles of stare decisis, you were saying just that.
CORNYN: In other words, it is a precedent of the court; there has to be a strong case made for why that issue should be revisited, if at all.
But you weren't making any commitment one way or another about the outcome of any challenge brought under that or any other legal doctrine, were you?
ROBERTS: No, Senator, and I tried as scrupulously as possible today to avoid making any commitments about cases that might come before the court.
CORNYN: I agree you have, and I just wanted to make sure that we were all on the same page in that understanding.
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