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Super-Precedent:
Some of you may remember Senator Arlen Specter asserting the existence of what he called "Super-Precedent" during his questioning of John Roberts. Now two highly-regarded academics, Dan Farber (UC Berkeley) and Michael Gerhardt (UNC) have defended the idea that some precedents are so foundational or "bedrock" that they, in effect, supersede the written constitution and cannot be reversed.

They presented their papers at the 2005 Minnesota Law Review Lindquist & Vennum Symposium entitled, "The Future of the Supreme Court: Institutional Reform and Beyond," and I presented a critical reply. While our papers are not yet available on line, you can click here to watch us discuss the idea of so-called Super-Precedent via Real Video in the webcast of the conference. Each talk lasts 20 minutes. (My response begins at 48:00 minutes on the webcast.)
Daniel Chapman (mail):
Laughable if it weren't so dangerous...
10.25.2005 6:05pm
Scott Moss (mail) (www):
I'm pretty sure Specter went further and declared Roe a "super-duper precedent," I think becuase there were so many subsequent cases re-applying (and not reversing) Roe.

No word on how many levels of superdom there are. Does super-dee-duper come next? Is that what Marbury is, or is there yet another plateau of hyperbole for that one?
10.25.2005 6:20pm
B. B.:
Marbury is Super Dee Double Dog Duper Precedent. I think that's the highest one.
10.25.2005 6:34pm
Rhadamanthus (mail):
The basic idea is actually not bad although categoric division has dangerous problems.
10.25.2005 6:38pm
Daniel Chapman (mail):
Yes... the basic idea is actually bad. Anything that gives SCOTUS the idea that its precedent EVER "supercedes" the written Constitution is bad.
10.25.2005 6:40pm
guest:
I don't get why everybody is mocking the idea as though it were a novel, outlandish concept. Who would dispute that some precedents are entitled to greater weight than others?
10.25.2005 6:42pm
PersonFromPorlock:
In effect, Specter is saying that the Constitution can be amended by the Court. I don't think so.
10.25.2005 6:54pm
GMUSL 2L (mail):
According to Eric Cartman, only "Super King Kong Mega Mega" precedent (ala the alleged bitchyness of Shiela Brozlovsky) can trump Super Duper Precedent!
10.25.2005 6:54pm
Daniel Chapman (mail):
I picture Justice Scalia shouting "Respect my authoritah!" and smacking people with a nightstck...
10.25.2005 6:56pm
Steve:
Specter is hardly saying that the Court can amend the Constitution. What he is saying is that if generation after generation believes that a given decision accurately reflects the Constitution, that decision should not be overruled merely because a new set of five Justices comes to believe that they can read the Constitution better than all those prior generations.
10.25.2005 6:57pm
They:
I think I remember how to get super-precedent status. While the intoduction to the game is still on the screen, you press up-up-down-down-left-right-left-right-B-A-B-A-select-start.

This really helps when you face the "Boss Brief" at the end of each level.
10.25.2005 6:59pm
Unnamed Co-Conspirator:
Yeah, that's right, Steve, like Plessy v. Ferguson.
10.25.2005 7:02pm
Marc Shepehrd (mail):
Specter's statement is highly unremarkable. It's simply another way of stating that judges are supposed to accord precedent some respect, and the level of respect depends on the type of precedent.

By the way, among the current nine Justices, Clarence Thomas is the only one who does not believe this is so.
10.25.2005 7:10pm
Daniel Chapman (mail):
"... have defended the idea that some precedents are so foundational or "bedrock" that they, in effect, supersede the written constitution and cannot be reversed."

No... we aren't talking about mere stare decisis here.
10.25.2005 7:15pm
JayJ:
It would appear that the key point behind all of this debate is the principle that just because a precedent is incorrect does not mean there is enough reason to overturn the precedent. The operative question then becomes, what else is needed (in addition to its incorrectness) for a precedent to be ripe for overruling? That's when you get precedents like Casey, Agostini, etc., that comment on such matters, which I guess would make them meta-precedents. ;-)
10.25.2005 7:16pm
Robert Lyman (mail):
Whether or not Specter's statement is remarkable in the abstract, it's truly bizarre as to Roe, a decision which has hardly been accepted by "generations" of scholars, judges, or even the Court. The Casey majority frankly admitted they were upholding it out of fear of appearing weak and overly responsive to public pressure. Even some of Roe's academic defenders will occasionally admit the decision has a very shaky textual basis.

Specter wants to declare Roe a "super precedent" not because it is such a strong decision, but because it is such a weak one. There is no need to make up special super-duper catagories for precedents that are actually well accepted.
10.25.2005 7:20pm
Proud Generation Y Slacker:
It would appear that the key point behind all of this debate is the principle that just because a precedent is incorrect does not mean there is enough reason to overturn the precedent.

We can restate this as the principle that politics trumps law.
10.25.2005 7:25pm
Robert Lyman (mail):
We can restate this as the principle that politics trumps law.

Only if we assume the original (wrong) precedent was motivated by legal and not political concerns.
10.25.2005 7:27pm
Proud Generation Y Slacker:
Only if we assume the original (wrong) precedent was motivated by legal and not political concerns.

Isn't there more reason to reverse incorrect politically-motivated decisions than incorrect legally-motivated decisions? There isn't less reason to do so.
10.25.2005 7:29pm
Jeremy (mail) (www):
Crap like this is one reason that so many non-academics take such a dim view of law professors. Thank God for the few academics, like the VC folks, who still defend common sense.
10.25.2005 7:39pm
legitprop (mail):
The danger with Specter's argument as it applies to Casey/Roe is that the primary reasons given by the plurality for upholding Roe had little to do with whether the original decision reflected an accurate understanding of relevant Constitutional structure and text. As Scalia points out in his Casey dissent, the plurality's discussion of "meta-principles" undergirding stare decisis skips consideration of the most obvious concern, namely, how wrong was the original decision on its face? The Casey plurality abandoned such pedestrian concerns in favor of disquisitions concerning (a) public perception of Supreme Court legitimacy and (b) the extent to which women have (supposedly) come to rely upon unfettered access to abortion. These concerns have little if anything to do with whether Roe was correct as a matter of constitutional law. Specter's theory would apparently permit the Court, by invoking such concerns, to elevate its most dubious prior precedents to a level of "super-duper" precedent immune from scrutiny on the merits by future Justices. This is nothing but a roadmap for further efforts by the liberal wing of the Court to aggrandize its own power and enforce its own policy preferences at the expense of the elected branches and the American people. Such pernicious nonsense should not be tolerated for a moment by any fair-minded observer concerned with the rule of law, regardless of where said observer stands on the political spectrum.
10.25.2005 7:42pm
Sydney Carton (www):
"supersede the written constitution and cannot be reversed."

As a matter of practical politics, what the heck is anyone going to do if a future Supreme Court DOES reverse a so-called super-precedent?

"X decision cannot be reversed! It's a super precedent!"
"We just reversed it."
"Umm...... ok."
10.25.2005 7:54pm
Proud Generation Y Slacker:
Charles Darnay:

Umm, you could TELL!
10.25.2005 7:56pm
Just John:
GMUSL 2L: I must respectfully disagree: the proper phrase is "Super King Kamehameha" precedent. The phrase refers either to a Hawaiian leader or a powerful energy attack in the various incarnations of the anime series "Dragonball Z". However, there may be even higher forms of precedent if any judge is able to achieve "Super SCOTUS 4" mode. Stay tuned for the next exciting argument!
10.25.2005 8:05pm
frankcross (mail):
Superduper is silly, but I think most of the commenters miss the point.

The very nature of stare decisis means you will adhere to a decision, even if you believe it to be wrong. Without that, stare decisis has no existence. There is no objective test for whether a doctrine is legally "wrong." Stare decisis is a reflection of humility (not shared by many commentators on this blog) that appreciates "my view of the correct law may be wrong." Obviously, the longer a precedent exists and the more entrenched it is, the more it deserves respect and humility from judges. I think this is all that is really meant by superduper precedents.
10.25.2005 8:28pm
Jeremy (mail) (www):
frankcross,

I think stare decisis is not so much "[adhering] to a decision, even if you believe it to be wrong" as it is giving the benefit of the doubt to previous decisions.
10.25.2005 8:33pm
Proud Generation Y Slacker:
Jeremy:

Like the difference between "I disagree, but a reasonable person could have decided that way," and "This has no credible basis in any legal authority and is based on patently faulty logic?" That makes sense to me. If a judge believed the latter, wouldn't he have an ethical obligation to overrule the earlier decision?
10.25.2005 8:37pm
Ian (www):
For all the mocking going on here, it is inarguable that there are certain decisions--Marbury v. Madison, West Coast Hotel v. Parrish, Brown v. Board of Education--which are so firmly entrenched and so essential to our system of governance that overturning them would be revolutionary in the French sense.

We hardly need to take seriously radicals who would toss out our entire system of laws. To quote President Eisenhower: "their numbers are negligiable and they are stupid."
10.25.2005 8:38pm
Sisyphus:
While Specter's description sounds foolish, there may be empirical evidence that supports him. Recent research (I think discussed in a prior post on VC) confirms that some precedents are cited much more often than others. Those precedents are certainly more powerful in terms of their effect on the law. And overruling those highly cited precedents would probably have a bigger effect on society than less-used precedents. Shouldn't they therefore be entitled to more deference, at the very least out of a Burkian fear of unintended consequences?

That certainly shouldn't mean the actual Constitution is trumped, but doesn't it make sense to create more hesitation on the part of judges to change such precedents? For somewhat close calls like Brown, this respect of network nodes of precedent is a reasonable way to determine how much respect to accord that precendent.

Incidentally, I have long thought that courts also do something similar with some laws, essentially treating them like quasi-Constitutional law entitled to more respect than other statutes (and inviting more interpretation). Examples are the 1964 Civil Rights Act, the Voting Rights Act, and the Sherman antitrust law. There are doubtless a good 10-15 more examples on the federal level.
10.25.2005 8:38pm
Aaron:
There is one supercalifragilisticexpealidocious precedent: Marbury.

Everything else is open for review
10.25.2005 8:42pm
Aaron:
I stand corrected: Wickard v. Filburn as well .
10.25.2005 8:44pm
Proud Generation Y Slacker:
Not true, Aaron. Marbury doesn't mean today what it did before Brown; most people have a different understanding of what it means now than they did 50 years ago.

Ian: Distinguish the rules of the cases from the reasoning used to get there. We depend on the outcome of Brown, but not its shoddy reasoning.
10.25.2005 8:45pm
jurisprude:
Wickard is most definitely a super-duper precedent. What Commerce Clause?
:^>
10.25.2005 9:20pm
Beerslurpy (www):

Anything that gives SCOTUS the idea that its precedent EVER "supercedes" the written Constitution is bad.


We have a winner.

If the constitution is interpreted to mean the opposite of what the words actually say, how can Congress or the states remedy the situation? For example, how could we amend the constitution so that it no longer says "everything is intersate commerce"- the problem is that it already doesnt say that, but SCOTUS has ignored the written word.

Similar criticisms could be leveled at the SCOTUS habits of issuing lengthy opinions on issues not presented to the court and arguably outside its reach (such as dictating nationwide local police procedure in Escobeda, Miranda). Or their habit of forming policy in areas that Congress has no enumerated power to act (Roe, Casey). A simpleton like myself might mistakenly have presumed that the Supreme Court cannot assume legislative powers denied to congress.

One could also argue that the Supreme Court abuses the Due Process clause by reaching down to the state level to rip out "unconstitutional" laws or rewrite them in novel ways. Why is this bad? The 14th amendment states that "Congress may make laws..." -these laws would then presumably override local ones. For the Supreme Court to assume the authority of making policy substantially departs from the role of any normal judiciary.

As a someone who merely aspires to lawyerhood at the moment, could anyone tell me where the bounds of judicial review lie? I realize that the SCOTUS has pretty much always had the ability to strike down state law under the Supremacy Clause, but I am wondering what limits there to what the Supreme Court may properly do without infringing on the executive or the legislative branches.

Is impeachment the only check/balance on the supreme court besides nominations?

-Jim W from FL
10.25.2005 9:23pm
Proud Generation Y Slacker:
Jim W:

As a someone who merely aspires to lawyerhood at the moment, could anyone tell me where the bounds of judicial review lie?

The People Themselves.
10.25.2005 9:26pm
Unnamed Co-Conspirator:
If the Brown v. Board holding is that de jure segregation based on race violates the equal protection clause, then how hard is it to extend the Brown holding to determine that racial classification for the purpose of reserving a preference for admission to certain public facilities, or portions of those public facilities, for particular racial groups also violates the equal protection clause? What if the public facility is a school? Does it matter if it's K-12, a college, or perhaps a law school? What if the preferred racial minority are blacks? What if it's another group, or a few different groups?

How super-duper is Brown, really?
10.25.2005 9:32pm
Rhadamanthus (mail):
I'm looking forward to reading the papers when they come out. A lot will depend on how far they go. You could argue that sub-conciously it has existed for decades. People like Justice White didn;t agree with Roe but voted to uphold it because of a respect for stare decisis- in essence saying that it superceded what they believed to be the Constitution. In essence therefore this can be seen as creating super-precedent. It may be they go further in which case it would require very careful analysis, although in principle I think it may have merit.
10.25.2005 9:35pm
Sydney Carton (www):
Jim:"Is impeachment the only check/balance on the supreme court besides nominations?"

No. Jurisdictional power can be set by Congress. But I'd rather a justice be impeached.

As for your broader question, Scalia himself has said that the modern Court has liberated itself from the written text of the Constitution. I think that one could make a good argument that there are reams of decisions made by the Court these days which in effect supercede the written constitution (for instance, the entire set of cases dealing with the Establishment Clause, for example).

Your question boils down to a more fundamental issue that lawyers, as people used to words, don't like to address: that ultimately, constitutions and political divisions created with words are mere substitutes for the Sword. And as such, we obey in order to ensure domestic tranquility. But when a people is convinced that their government abridges their rights so wholly, so fundamentally - violence tends to occur. Your question - what to do with a runaway Supreme Court that has set itself above the co-equal branches of government, is to first knock down such authority by any lawful means possible (such as amending the constitution to seriously revamp the nature of judicial review) or to use those methods currently available (such as impeachment, jurisdictional change, executive authority to not enforce a decision, etc). But barring that, if the Court assumes for itself legislative authority (as it is increasingly doing) and executive authority (such as in prosecuting a war, etc) then you'll find plenty of people who will reject that system openly and violently.

France has had several constitutions since its Revolution. No one can say that America will only have one since ours.
10.25.2005 9:38pm
Randy Barnett (mail) (www):
Both Farber and Gerhardt deny that Roe is a Super-Precedent (though of course, Specter asserts that it is). Everyone would benefit greatly from listening to their presentations before opining.
10.25.2005 9:39pm
Appellate Junkie (mail):
Ian wrote:


For all the mocking going on here, it is inarguable that there are certain decisions--Marbury v. Madison, West Coast Hotel v. Parrish, Brown v. Board of Education--which are so firmly entrenched and so essential to our system of governance that overturning them would be revolutionary in the French sense.


Indeed. I even listened to parts of the panel's presentation (admittedly, I haven't read the papers and probably won't). I didn't see any serious need for and only the mildest suggestion that stare decisis as we know it isn't up to the task.

Barnett did make a worthwhile observation that runs counter to some of what I've seen here (at least in the absolute notion that there is no standard for establishing that a case was wrong and need be overturned): Plessy v. Ferguson. It was well entrenched by the time it met its death. But ultimately it died. I'm quite thankful it did.

Honestly, the whole debate seemed much more about competing visions of constitutional interpretation opaquely debated through the lens of precedent. I'd rather the panelists just laid their cards on the table had the (somewhat tired) underlying debate in explicit terms.
10.25.2005 9:56pm
DK:
Surely the reason Marbury and Brown are important is that they are correct, not that they are 'super-precedents' or that overturning them would be revolutionary. If the universal acclaim of past generations were the deciding factor, we would still have public hangings and opposite-sex-only-marriage.

The reality is that a "super-precedent" is always going to be "a precedent that fits my legal theory or my political needs." Calling any case a "super-precedent" is just begging the question.

It is ridiculous that supposedly liberal and progressive people are trying to use an argument more conservative than Burke to defend Roe v. Wade. Even with Thomas on the court, radical departures from precedent are more likely to advance liberal causes than conservative ones. Lawrence v. Texas anyone? or the restrictions on executing minors?
10.25.2005 10:01pm
frankcross (mail):
Actually, a large number of people think Brown and Marbury were wrong, even if not in outcome certainly in governing reasoning. Yet they surely survive as "super" precedents.

Adhering to such precedents is conservative in the Burkean sense. And it is wise, because the law needs stability and we don't want every judge doing what he or she believes to be "correct" regardless of what other judges believe.

No one should say that there should be precedents above being overruled under any circumstances. However, judges should be hesitant to overrule any precedent, as the Supreme Court has historically been reluctant, and judges should be especially reluctant to overturn precedents that are long-established and integrated into government and people's expectations. The law is not independently sacred, it is a tool for bettering society, and adhering to precedents generally serves that end.
10.25.2005 10:23pm
Robert Lyman (mail):
Slacker,

I think I probably misunderstood you, but I don't have time to think about it right now.
10.25.2005 11:31pm
Perseus:
The speakers did not offer Roe v. Wade as a possible super-precedent, but the decision that paved the way for Roe (and Lawrence) was, namely, Griswold v. Connecticut (talk about the worst kind of anti-Burkean speculative spirit infecting the Court in that decision).

The notion of super-precedents strikes me as just another way of sanctioning the Supreme Court as a super-legislature.
10.26.2005 3:56am
Visitor Again:
A related question has always interested me, the refusal of some justices to accept precedent in certain areas even long after it is fairly well-estabished.

Justices Black and Douglas persisted with their absolutist view of the first amendment free speech clause long after it was rejected by successive Court majorities.

The death penalty and abortion are other areas where the fundamental decisions have remained open to question by various justices.

Some justices regard some issues as too important to be finally resolved and do not feel bound by stare decisis.
10.26.2005 8:43am
DK:
Some people here would benefit from reading Burke. It is a bit odd to call the idea that some past decisions can never be changed "Burkean." Burke was _never_ an advocate of preserving an unchanging past. He _was_ an advocate of liberal (whig) reform, implemented cautiously and with careful consideration of context. He was also a ferocious opponent of implementing any absolute principle without regard to circumstances.

Of course, Burke would favor a strong deference to precedent (which is not at issue here in a discussion on super-precedent.) But there is nothing "Burkean" about elevating precedent (or anything else) to an unchangeable absolute.

"But I cannot stand forward and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind. Abstractedly speaking, government, as well as liberty, is good; yet could I, in common sense, ten years ago, have felicitated France on her enjoyment of a government (for she then had a government) without inquiry what the nature of that government was, or how it was administered? Can I now congratulate the same nation upon its freedom?" -- Edmund Burke, Reflections on the Revolution in France
10.26.2005 10:37am
Joshua (mail):
DK wrote:
It is ridiculous that supposedly liberal and progressive people are trying to use an argument more conservative than Burke to defend Roe v. Wade. Even with Thomas on the court, radical departures from precedent are more likely to advance liberal causes than conservative ones. Lawrence v. Texas anyone? or the restrictions on executing minors?
I found that rather odd myself. Whether or not they actually supersede the Constitution itself, the very idea of "super-precedents" seems to run counter to the notion of the Constitution as a living document (which many liberals and progressives claim to embrace).

It seems to me that if the Constitution is a living document, any given constitutional precedent, "super" or otherwise, would have a relatively short shelf life of only a generation or so, after which it would be fair game to be re-evaluated in light of changed times and attitudes since the original precedent.
10.26.2005 11:06am
Thief (mail) (www):
I think I remember how to get super-precedent status. While the intoduction to the game is still on the screen, you press up-up-down-down-left-right-left-right-B-A-B-A-select-start.

This really helps when you face the "Boss Brief" at the end of each level.


Best. VC Comment. EVER.

On the whole issue of super-precedents: I don't think they exist. Marbury isn't a super-precedent as much as it is a statement of the obvious (how can the Constitution be "the supreme law of the land" if laws directly contradicting it are allowed to stand, and if the judicial branch's job is "to say what the law is," why shouldn't it have this power?) Brown, IMO, was a correct result achieved through poor reasoning.

As to everything else, quoth the professor in a Con Law class at BC I sat in: "Supreme Court decisions are not set in 'stone,' more like 'peanut butter.'"
10.26.2005 12:08pm
Horst Graben (mail):
It's really all just talk. Any supreme court can overturn any previous decision at their pleasure, however, it is wise to follow advise from the Declaration of Independence:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes;

Substitute precident for governments and there you have it.

All of the rest is idle chatter... of course that is the root of all billable hours, natch.
10.26.2005 10:40pm
Patrick (mail):
The generally more conservative Australian High Court has a usual position that judicially approved, or more importantly, non-disapproved, interpretations of the constitution can indeed become binding on the courts.

Mainly this is because only about 4 or 5 of the 49 High Court Justices in our history have ever imagined the kind of activism so common here! The mainstream view there is that parliament is supreme except where the constitution says otherwise, effectively (even though in fact that means supreme within the powers delimited to it because the federal powers are finite and numerated, but the effect given them is high).

So they have no problem accepting that the court binds itself.
10.27.2005 7:14pm