Topic: Precedent
Senator: Hatch
Date: SEPTEMBER 13, 2005
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HATCH: Well, you claimed in your questionnaire that judges do not, quote, "have a commission to solve society's problems," unquote. I cannot agree more.
But this is an interesting formulation. It is worth remembering. I think that my office and your office only exist because the American people have authorized them through the Constitution. In other words, the power that you have as a judge comes from the people.
Now, that would be a fair assessment, I take it?
ROBERTS: Yes.
HATCH: OK. Let me explore this question of precedent a little bit more with you.
Obviously, the Supreme Court decides cases involving a range of issues and requiring application of different kinds of law, including regulations and statutes as well as the Constitution. All of these cases can set precedents which might be relied upon to decide future cases raising similar issues.
Now, what is your understanding of the role that precedent plays in these different categories of cases?
HATCH: Is precedent equally authoritative in, for example, regulatory or statutory cases as in constitutional cases? As I understand it, the Supreme Court has long said that the strength of its prior decisions is related in part to the difficulty in correcting errors.
In constitutional cases, there is no external way to correct an error, except by constitutional amendment.
Now, the Supreme Court says, therefore, that precedent is weakest in constitutional cases.
Now, I have here a list of statements from Supreme Court decisions going back decades and decades to reflect this.
In 1997, Justice Sandra Day O'Connor wrote for the court in Agostini v. Felton that you mentioned earlier, that stare decicis or precedent is not a command but a policy, and it is a policy that is -- and I am quoting Justice O'Connor here -- quote, "at its weakest when we interpret the Constitution, because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions," unquote.
In 1944, Justice Reed wrote for the court, in Smith v. Allwright, quote, "In constitutional questions where correction depends upon amendment and not upon legislative action, this court, throughout its history, has freely exercised its power to re-examine the basis of its constitutional decisions," unquote.
Now, Mr. Chairman, I would like to place this list in the record if I can at this point.
SPECTER: Without objection, so ordered.
HATCH: Now, the bottom line is that precedent is weakest in constitutional cases. Does this distinction make sense to you, Judge Roberts? And has it, in fact, resulted in the Supreme Court overruling its previous interpretations of the Constitution with any frequency?
ROBERTS: The court has frequently explained that stare decisis is strongest when you are dealing with a statutory decision. The theory is a very straightforward one, that if the court gets it wrong, Congress can fix it.
And the Constitution, the court has explained, is different. Obviously, short of amendment, only the court can fix the constitutional precedents.
HATCH: Do you believe that Congress is just as bound by constitutional limits as state legislatures?
ROBERTS: There are different limits, of course. But, yes, the limits in the Constitution on Congress are as important as limitations on state legislatures in the Constitution.
HATCH: Well, I ask that question because some seem to argue that overturning a statute that we pass here in the national legislature is almost presumptively an example of judicial activism. I have disagreed with the court on some of these statutes. The Morrison case is a perfect illustration to me. I'm, along with Senator Biden, the author of the Violence Against Women Act, and I felt that they overreached in that particular case.
But, in any event, some believe that it's judicial activism, while turning a blind eye to the much more common practice of striking down state legislation is just an afterthought.
Now, this argument gets even more complicated when the Supreme Court uses provision actually in the Constitution to strike down that a congressional statute, but provisions not in the Constitution to strike down state statutes.
America's founders were clear that the Constitution established a federal government of few and defined powers. It cannot regulate any activity it chooses, but they only regulate in those areas which the Constitution grants it power to regulate.
Now, one familiar area is found in Article I, Section 8, which gives the Congress the power to, quote, "to regulate commerce among the various states," unquote.
Now, don't get me wrong, I do not necessarily agree with the Supreme Court, as I mentioned in the Morrison case. I don't think they always get it right when saying that Congress has overstepped its bounds with respect to regulating interstate commerce.
At the same time, some have warned that we are sliding into a constitutional abyss because the court has found just twice in more than 60 years that there is something, anything, that it says the Constitution does not allow Congress to do.
Now, could you comment on the Supreme Court's duty to exercise judicial review regarding Congress and state legislatures and their enactments?
ROBERTS: The obligation to say what the law is, including determining that particular legislation is unconstitutional, is, as Chief Justice Marshall said, emphatically the duty and province of the judicial branch.
You and I can agree or disagree on whether the court is right in a particular case. But if the court strikes down an act of Congress and it's wrong, the court shouldn't have done that, that's not an act of judicial activism, it's just being wrong.
The obligation to strike down legislation is with the judicial branch. I think, as Justice Holmes said, it's gravest and most delicate duty that the court performs.
And the reason is obvious. All judges are acutely aware of the fact that millions and millions of people have voted for you and not one has voted for any of us.
That means that you have the responsibility of representing the policy preferences of the people making the determination about when legislation is necessary and appropriate and what form that legislation should take.
Our job is a very different one. We have to consider cases that raise the question from time to time whether a particular legislation is constitutional. And we have to limit ourselves in doing that to applying the law and not in any way substituting ourselves for the policy choices you've made.
But, as I would say, it's not judicial activism when the court do that. They may be right or they're wrong. And if they're wrong, they're wrong, but it's not activism.
HATCH: Well, thank you, Judge.
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