Topic: Precedence and its Value
Senator: Grassley
Date: SEPTEMBER 13, 2005
Contents
GRASSLEY: In your questionnaire to the committee, you stated that, quote, "Precedent plays an important role in promoting stability of the legal system," end of quote. I think we would all agree.
You also said that a judge operates within, quote, "system of rules developed over the years by other judges equally striving to live up to their judicial oath," end of quote.
It's also true that Justice Frankfurter explained, as he explained, that, quote, "The ultimate touchstone of constitutionality is the Constitution itself, not what we have said about it. Erroneous interpretations of the Constitution can be corrected only by this court." I suppose by constitutional amendment as well.
The court has done so many times, and most famously you've referred to it, the Brown case, which overruled separate but equal precedent that stood for 58 years.
So, Judge Roberts, I'd like to ask you a few questions on the issue of precedence and its value in our legal system. History has provided many examples of the dangers of government by the judiciary, such as the court's decision in Dred Scott.
Do you share President Lincoln's concerns -- and I'm going to quote here from his first inaugural. Quote: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made in ordinary litigation, the people will have ceased to be their own rulers." End of quote.
ROBERTS: Well, President Lincoln, of course, was referring to one of the -- perhaps the most egregious example of judicial activism in our history, the Dred Scott case, in which the court went far beyond what was necessary to decide the case.
And really I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery and resolving it in a particular way that it thought was best for the nation. And we saw what disastrous consequences flowed from that.
And Lincoln's comment about it -- and he had several comments, because even when he was running for Senate, a big part of the famous debates were, "Well, this is what the Supreme Court has said. Are you going to follow it or not?"
ROBERTS: And Lincoln was a very careful lawyer in his responses. And the reason it was such a problem is because he was dealing with such an overarching Supreme Court decision. They didn't even just decide the particular case. The court decided to take upon itself opining more generally on how the whole issue should be resolved. And of course, as I said, it was a disaster.
So, yes, to the extent Lincoln's criticism is how broad and overreaching the court opinion was and that that in itself presented a very difficult problem in terms of adherence to the decision, I do agree with that.
GRASSLEY: Let me carry that one step further, beyond his quote. You now, as an appeals court judge, obviously are bound by Supreme Court precedent. But on the Supreme Court, a justice has much more freedom to re-evaluate prior Supreme Court decisions.
I'd like to explore the approach that you would take in your examination of Supreme Court precedents. Could you tell us what you believe is the appropriate judicial role, describing for us the value of precedent in our legal system?
ROBERTS: Certainly. And here again, we're guided by the court. It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't. And of course some of the cases say you should in a particular instance, and others that you shouldn't.
You begin with a basis recognition of the value of precedent. No judge gets up every morning with a clean slate and says, "Well, what should the Constitution look like today?" The approach is a more modest one, to begin with the precedents. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.
Those precedents become part of the rule of law that the judge must apply.
At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.
If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, "Because of these three precedents, we reach this result," and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent.
ROBERTS: At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent.
It is a jolt to the legal system to overrule a precedent and that has to be taken into account as well the different expectations that have grown up around it.
There are different other aspects of the rules. For example, property decisions are afar less likely to be reconsidered because of the expectations that grow up around them. Statutory decisions are less likely to be reconsidered because Congress can fix it if it's a mistake.
Again, the court's decisions in cases like Casey and Dickerson, Payne v. Tennessee, Agostini, State Oil Company v. Khan, it's an issue that comes up on a regular basis and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.
The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations.
GRASSLEY: Given your views on judicial restraint, can you tell us to what extent you feel obliged to uphold a decision which you found not to be based on the original intent of the Constitution?
Could you explain what factors or criteria you might use to evaluate to see whether a decision deviated from original intent, whether it should be overruled?
ROBERTS: Well, again, you would start the precedent of the court on that decision. In other words, if you think that the decision was correctly decided or wrongly decided, that doesn't answer the question of whether or not it should be revisited.
You do have to look at whether or not the decision has led to a workable rule. You have to consider whether it's created settled expectations that should not be disrupted in the interest of regularity in the legal system. You do have to look at whether or not the bases of the precedent have been eroded.
ROBERTS: Those are the main considerations that the court has articulated in a case like Dickerson, Payne v. Tennessee and the others. These are all the factors that the court looks at.
Obviously, a view about the case presents the question, but the court has emphasized it's not enough to think that the decision is wrong, to take the next step to revisit it an overrule.
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