Topic: Stare Decisis
Senator: Feinstein
Date: SEPTEMBER 14, 2005
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FEINSTEIN: Let me take you to yesterday morning and stare decisis.
FEINSTEIN: Because you specifically discussed, when you were asked about Roe and Casey, precedent. Specifically, as we said, workability, reliance, pragmatic considerations, changed facts or circumstances and whether the underlying legal or constitutional doctrine would still be valid. Are there any other factors that you think should be considered?
ROBERTS: Well, the court has been somewhat inconsistent on some other factors. They, for example, talked about, in some cases, the length of a precedent, the idea that the longer it's been on the books, the more people have conformed their conduct to it. In other cases, they've suggested that's not such an important consideration. In Payne v. Tennessee, the case said it noted how closely divided the court was and the prior case was a factor. But in other cases, the court has said that's not a major consideration. So I put those factors on the table simply because, in some cases, the court looks to them; in others, it doesn't. But I think the ones I mentioned yesterday are ones that apply in every case, including the settled expectations, the workability, whether the doctrinal basis of a decision have been eroded.
FEINSTEIN: Yesterday, in answering Senator Specter on this very point, when you referred to Payne v. Tennessee, you did point out there were other considerations that come into play and they're laid out again in Dickerson and other cases, Payne v. Tennessee, Agostini, and a variety of decisions where the court has explained when it will revisit a precedent and when it will not.
ROBERTS: Yes.
FEINSTEIN: What do you think, when it should and should not?
ROBERTS: Well, I do think you do have to look at those criteria. And the ones that I pull from those various cases are, first of all, the basic principle that it's not enough that you think that the decision was wrongly decided. That's not enough to justify revisiting it. Otherwise, there'd be no role for precedent and no role for stare decisis. Second of all, one basis for reconsidering it is the issue of workability. If a precedent has turned out not to provide workable rules, if courts get different results in similar cases because...
FEINSTEIN: Or if another case, like Casey, finds that Roe is workable.
ROBERTS: Well, again, that is a precedent of its own...
FEINSTEIN: Right.
ROBERTS: ... that obviously would be looked at under principles of stare decisis. The issue of the erosion of precedent: If you have a decision that's based on three different cases and two of them have been overruled, maybe that's a basis that justifies revisiting the prior precedent. The issue of settled expectations: The court has explained, you look at the extent to which people have conformed their conduct to the rule and have developed settled expectations in connection with it. Perhaps the discussion earlier we had about the Dickerson case is a good example of that, where the chief justice thought Miranda was wrongly decided but explained that it had become part of the established rules of police conduct and was going to respect those expectations.
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