an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Orin Kerr on the Impact of Justice O’Connor’s Retirement
In today’s LA Times, my colleague Orin Kerr (law, GW) surmises that Justice O’Connor’s retirement will not have as dramatic an impact on the Supreme Court as many might believe. One of his arguments is that Justices Kennedy and O’Connor are both swing votes, so O’Connor’s retirement just eliminates one swing vote. Another argument is that the Court will respect stare decisis:
. . . [T]he legal principle of stare decisis will limit the changes. By institutional tradition, the Supreme Court overturns prior decisions only rarely. The justices routinely decline to overrule old cases even if they would have reached a different result the first time.
In other words, once a case is decided, it tends to stick around. This practice helps explain why most of the major decisions of the liberal Warren Court from the 1960s remain on the books today. It also suggests that most of the decisions shaped by O'Connor will remain the law in the future.
He concludes, in a blog post on the same topic, that “the stakes for the battle to replace O'Connor are somewhat lower than many people assume.”
As always, Kerr is interesting and thoughtful, but I think he overlooks a few points. First, the impact of a Supreme Court Justice is not just in her votes, but in how she might influence decisions behind the scenes. I don’t have the inside scoop on what effect Justice O’Connor had, but my guess is that she helped moderate decisions, narrow them, and build compromise positions. Even when not overtly doing so, the need to procure O’Connor’s vote must have influenced some justices in crafting majority opinions.
Regarding precedent, Kerr is right that stare decisis will limit how much of a radical shift one appointment can make, but we are not too far away from an "activist" conservative Supreme Court. (I use the term "activist" to mean a Court more inclined to depart from settled precedent. I have many problems with the way that the term "activist" is generally used, but I want to avoid getting into that debate now.) Not all justices respect precedent equally. The most activist is Justice Scalia who has these thoughts on precedent in his dissent in South Carolina v. Gathers, 490 U.S. 95 (1989), where he called for overturning Booth v. Maryland, 482 U.S. 496 (1987):
"It has been argued that we should not overrule so recent a decision, lest our action 'appear to be . . . occasioned by nothing more than a change in the Court's personnel,' and the rules we announce no more than 'opinions of a small group of men who temporarily occupy high office.' I doubt that overruling Booth will so shake the citizenry's faith in the Court. Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision.
. . . Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it . . .
. . . In any case, I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. . . I agree with Justice Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).
If President Bush appoints a justice in the mold of Justice Scalia, Justice O’Connor’s retirement will lead to a Court that is not only more conservative, but more activist as well. Posted
by Daniel Solove [link]
Interesting points. However, you're clearly wrong when you say that Justice Scalia is the "most activist" justice in the sense of the most willing to overturn settled precedent. Justice Thomas, again and again, has proven even more willing to depart from a long-standing line of cases in order to return to what he sees as the original meaning of the Constitution. In fact, an extremely weak adherence to stare decisis is often taken to be the most distinctive characteristic of Thomas's jurisprudence. In contrast, on many occasions Scalia has described himself as a "faint-hearted originalist."
Examples are legion, but the most recent was one of the Ten Commandments cases, in which Thomas dissented alone to express his view -- which Scalia does not appear to share -- that the Establishment Clause, is at least largely inapplicable to the states under the Fourteenth Amendment.
As an addendum to my comment above, see this post by Randy Barnett, who hopes that Bush's nominee will be more like Thomas (willing to overrule long-standing precedent) and less like Scalia (a faint-hearted originalist). Barnett quotes this passage from Thomas's dissent in Kelo:
When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.
Randy Barnett is looking for another no doubting Thomas to help find and restore the lost Constitution. Alas, it is not the Constitution that is lost, but we need not look for either Barnett or Thomas who will remain missing in action while time and change marches on.
Iridium is spot on here with respect to Thomas. I would add on here that adherence to stare decisis in the case of Justice O'Connor is a much dicier thing to weigh than this post suggests.
Justice O'Connor disdained deciding on the basis of rules and preferred "balancing tests" and narrowly tailoring opinions to the facts at hand. This was often lauded as a measure of her restraint as a judge. Ironically, though, it left her free to depart from today's inclinations in the event tomorrows breeze should blow differently. It centralized the role of the judge in society, and lowered the predictability of the law as announced by the court. Hence her gymnastic retreat from Midkiff in the Kelo case. Writing opinions so that they shed very little light on future cases of similar nature leads to a subtler activism; in eschewing clear rules and principles, judges like O'Connor keep for themselves right continually to remake the law without giving indication to other actors where in fact things are headed, and without binding future judges to much by way of precedent.