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"Respect for Precedents":

A New York Times editorial asserts (thanks to How Appealing for the pointer):

Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process.

The study — with the unwieldy title "An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court" — published in Constitutional Commentary, looked at how nine long-serving justices answered Senate questions, and how they then voted on the court. While it does not say that any nominee was intentionally misleading, it still found a wide gap.

Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would....

Well, I looked at the study, and I'm not sure I'm quite persuaded by how it categorizes the data. In particular, it seems to me that (according to the testimony reported in the Appendix, quoted below), Justice Scalia generally said that he had strong respect for old precedent -- and my impressionistic sense is that Justice Scalia has acted precisely this way. Justice Thomas, for instance, wrote a separate opinion in favor of overruling the Court's 1798 Ex Post Facto Clause decision in Calder v. Bull; Justice Scalia did not join that. The great bulk of Justice Scalia's votes in favor of reversing precedent have focused on precedent from the past several decades (unsurprising, partly because there's a lot more newer precedent, and partly because Justice Scalia is indeed big on tradition). So I see no "wide gap."

Here's the testimony from the Appendix:

Scalia: Stare Decisis/Precedent

[32] The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe.

[37] Q: Well, what weight do you give the precedents of the Supreme Court? A: It depends upon the nature of the precedent, the nature of the issue. Let us assume that somebody runs in from Princeton University, and on the basis of the latest historical research, he or she has discovered a lost document which shows that it was never intended that the Supreme Court should have the authority to declare a statute unconstitutional. I would not necessarily reverse Marbury v. Madison on the basis of something like that. To some extent, Government even at the Supreme Court level is a practical exercise. There are some things that are done, and when they are done, they are done and you move on. Now, which of those you think are so woven in the fabric of law that mistakes made are too late to correct, and which are not, that is a difficult question to answer. It can only be answered in the context of a particular case, and I do not think I should answer anything in the context of a particular case.

[45] Q: [A Supreme Court Justice] said that a precedent might be less authoritative if it had stood for a shorter period of time or if it was a decision by a sharply divide court.... Would you agree with that general sentiment? A: Well, I think the length of time is a considerably important factor. The Marbury v. Madison example that I gave in response to [a previous question.] I am not sure that I agree with [the Justice] that the closeness of the prior decision makes that much difference. I mean, if Marbury v. Madison had been 5 to 4, I am not sure I would reverse it today. But I can understand how some judges might consider that that is an appropriate factor as well. I agree — I certainly agree with the former. The latter would not have occurred to me, but maybe.

[104] I agree with the statement that longstanding cases are more difficult to overrule than recent cases.... [A]s I've said, some cases that are so old, even if you waived a document in my face proving that they were wrong when decided in 1803, I think you'd have to say, sorry, too late.

This is one highly general and banal pro-precedent statement ("The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe," which is surely true, given that in the overwhelming majority of cases all Justices follow stare decisis simply for pragmatic reasons), followed by three statements expressing respect for old precedent. I wouldn't count this testimony as strongly pro-precedent in any absolute way; and I don't quite see how one can sensibly compare it to the other Justices' statements on precedent, which is what the study purported to do.

If each statement could be fairly boiled down to a simple "for precedent" or "against precedent," then maybe such comparisons could be made (though I doubt it). But if I'm right that Justice Scalia's statements were far from such simple assertions, and instead distinguished different kinds of precedents, then I don't see how the survey can sensibly give Justice Scalia a high pro-precedent score. (Justice Thomas's statements are likewise hard to categorize as solidly pro-precedent; the study actually put Thomas's views nearer the middle of the Justices', but again I don't quite see how one can sensibly do that, given the qualified nature of the Justices' stated views on the subject.)

There are lots of other possible problems here, some of which the article quite candidly delves into on PDF pages 33 and 34. But this problem alone should, I think, lead one to be quite skeptical of the New York Times assertions of a "wide gap" between the Justices' statements and their votes, and especially as to Justice Scalia. (I should say that the broader point that Justices' votes are hard to predict from their confirmation statements does strike me as correct.)

David M. Nieporent (www):
But how do they feel about super-duper precedent?
4.14.2008 10:48am
Student:
Why are you surprised that the Times' editorial board would selectively quote a study of questionable validity? In the same editorial they choose to minimize criticism of Jusitce Souter and highlight criticism of Justice Scalia (criticism of both contained in the same study mind you).

Look at the same page and you'll see them crying about the "perverse" federal preemption doctrine, at the same time they're calling for massive expansion of federal power in practically every other area of the economy. The board is blatantly partisan, and contradicts themselves regularly depending on which special interest group will benefit from a particular policy.
4.14.2008 10:51am
Fearless:
I have no opinion on the study.

However, I don't understand how you can say


I wouldn't count this testimony as strongly pro-precedent in any absolute way


When Scalia said "I strongly believe" in "the doctrine of stare decisis."

If saying you strongly believe in the doctrine of stare decisis, which is a pro-precedent doctrine, is not a pro-precedent statement, then nothing is.
4.14.2008 10:55am
Terrivus:
Adam Cohen (the NYT Ed Board's "law" person) writes to his audience and none other. There's no point in trying to discern any evenhandedness in his/the Board's legal editorials.

And are we really trying to make sense of the Senate confirmation hearings? Liberal or conservative, the only thing everyone should be able to agree upon is that they are a Kabuki show that reveal nothing about how a Justice will act once on the Court.
4.14.2008 10:56am
Eugene Volokh (www):
Fearless: As I said, "The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe" is a "highly general and banal pro-precedent statement ... which is surely true, given that in the overwhelming majority of cases all Justices follow stare decisis simply for pragmatic reasons." You can strongly believe in the doctrine of stare decisis and still see it yield in a small percentage of the cases (and recall that all the Justices follow precedent in all but a small percentage of the cases), just as you can strongly believe in free speech and yet accept some speech restriction in a small range of cases (e.g., false statements of fact, threats, etc.).

Put this generality together with the three specific statements that stress the special need to follow old precedent, and it seems to me that the result is not "strongly pro-precedent in any absolute way."
4.14.2008 10:59am
Bpbatista (mail):
Stare decisis does not mean that any previous decision is unalterable. I doubt that the Times thinks that Plessy v. Ferguson should have been upheld on stare decisis grounds. Certainly, the Times has no problem with the recent decision overruling Bowers v. Hardwick. Of course, this is all a stalking horse for Roe v. Wade. As usual, the Libs want to have it both ways on stare decisis when it suits their purposes.
4.14.2008 11:08am
Bob from Ohio (mail):
Pity about Marbury v. Madison. If any decision needs reversing, that would be the one.
4.14.2008 11:12am
Fearless:

Why are you surprised that the Times' editorial board would selectively quote a study of questionable validity?


This is just sloppy. Is the problem that the study is of "questionable validity" or is the problem that the Times is "selectively quot[ing]" the study? Are you really suggesting that the Times is somehow distorting the findings of the study?

Finally, I think to be fair to the study, the criticism that Volokh is directing at the study could be directed at absolutely any study of this nature. Interpretation of words, as liberals emphasize but conservatives don't seem to understand, is a subjective art. All Volokh is doing is saying that he has a different subjective understanding of the meaning of Scalia's words than the study.

Fine. But the study has to choose some meaning hopefully based on some neutral method for assessing meaning. And no matter how it chooses, it will always be subject to disagreement by someone who would choose a different interpretation. That is a limitation of ANY study of this sort. It is not a methodological flaw, it is a systematic limitation on all such studies. It is a systematic limitation going to the nature of interpretation itself.

That a study incorporates some contested assumptions is not really grounds for bashing it. One should point out the limitations of those assumptions and even propose alternative assumptions that you believe are better, but one should not bash.

I should point out that Volokh adopts quite a few contested assumptions in his own scholarship. It is best for those who live in glass houses to not throw stones. The limitation that Volokh is picking on is simply inherent in this type of study, just as the picking of certain contested assumptions is inherent in the scholarship that Volokh publishes in law reviews. That doesn't mean that one does not mention when they would pick different assumptions, but it does mean that when one is attacking the assumptions of another, one tempers their self-righteousness with recognition that you have to assume something, otherwise, you can write nothing.
4.14.2008 11:12am
Student:

This is just sloppy. Is the problem that the study is of "questionable validity" or is the problem that the Times is "selectively quot[ing]" the study? Are you really suggesting that the Times is somehow distorting the findings of the study?

Sloppy? I think it's pretty clear actually. You don't appear to have had any trouble identifying both of my criticisms.
4.14.2008 11:30am
Fearless:
Eugene Volokh,

I do not disagree that one may parse that way. It is a highly technical parsing though, one that goes against the impressions that the language would typically convey.

This is a game of deception.

You are disregarding an important adjective. Scalia did not merely say that he believes in stare decisis, he said he strongly believes in that doctrine.

That you believe in something strongly tends to signal, in most circumstances, a tendency towards less nuance. That is, one does not normally say they strongly believe in something, if there are many exceptions to the application of that belief.

If someone says they strongly believe in the death penalty, you get the impression that they favor less exceptions to the death penalty than if they merely say I believe in the death penalty. Of course, this is not the only interpretation. Strong beliefs do not distinguish all nuance. However, there is some tension between the two. And if you say you strongly believe in something, you usually state the exception if you do not want to mislead. The impression left by the word strongly is that there are few exceptions.

Scalia knew or should have known what impression his words were likely to have. To say he strongly believed in the doctrine of stare decisis, he should have known that he was creating the impression that he would be hesitant to overturn all precedent. He should have known, he is smart enough to have known, that people would have this idea, unless he further qualified his statement by saying that he felt that the doctrine applied such that very old precedent must be respected, but that one can casually overturn precedent that is only three or four decades old. He should have said that to him, the doctrine of stare decisis means only that one support very old instead of merely old precedent. That the doctrine he strongly supported was this nuanced beast, and not a more straightforward version.

Basically, there is reason to believe that Scalia was being strategically dishonest. He knew that he might have trouble being confirmed if he were to fully state his attitude towards precedent, so he said words that technically gave him wiggle room to shock us all with his casual disrespect for decades old precedent, even while giving us the impression that he would have a tendency to respect that which came decades before.

There is no defending Scalia here. This is nothing more than purposeful and knowing dishonesty by omission. At the very least he should have said he believed in the principle of stare decisis and left the adjective "strongly" off. He knew or should have known what affect that adjective would have on his audience.

Some might say that the confirmation is such that judicial candidates are driven to dishonesty. That before, Senators would not even think of asking certain questions that they now ask on a routine basis. That judicial candidates have no choice but to be dishonest.

I say dishonesty is a choice.
4.14.2008 11:38am
Dave N (mail):
After Robert Bork was, well, "Borked," you aren't going to find any Supreme Court nominee describing his or her judicial philosophy in much more than innocuous sounding pablum.
4.14.2008 11:40am
frankcross (mail):
Student, your post did have a bit of the "the food is so bad here, and there's so little of it" flavor. If the study is so questionable, selective quoting shouldn't matter so much
4.14.2008 11:40am
Fearless:
Here is a simpler way to get at the point.

Someone says they strongly support the death penalty.

Would you be surprised to learn they only support it only in cases of mass murder accompanied by gang rape and at least one week of excruciating torture for the victims, but oppose it in all other cases of murder or mass murder?
4.14.2008 11:43am
Eugene Volokh (www):
Fearless: If you check the study, you'll see that Justice Scalia was noted as having voted to overrule precedent in 3.6% of the cases, which is to say that he followed precedent entirely in 96.4% of the cases. Since each case typically relies on multiple precedents, the actual percentage of precedents that adhered to would likely be much higher than 96.4%.

So if we follow your analogy (and I'm not sure the subject matter of your analogy is really that analogous, but I'm going with it for purposes of this comment), we'd have someone

(1) saying they "strongly" support the death penalty for murder,

(2) then making three comments about how they think that when deciding whether to apply the death penalty for murder, one should consider various factors (which implicitly acknowledges that under certain circumstances one wouldn't apply the death penalty for murder), but then

(3) voting in favor of the death penalty in over 96.4% of all murder cases.

Would I be surprised by that result? I might be surprised that the number is as high as 96.4%; I wouldn't be surprised that it isn't any higher.
4.14.2008 11:51am
Student:
"Student, your post did have a bit of the "the food is so bad here, and there's so little of it" flavor. If the study is so questionable, selective quoting shouldn't matter so much"

Well I've been in places where the food was both bad and scarce...They certainly both seem like valid (and not inherently contradictory) criticisms to me. But thanks for the substantive criticism Frank.

Picking up on earlier posts though, even if the data is so inherently sketchy in this area that Prof. Volokh's criticism of the study (which I adopted) is entirely invalid, I don't know that that excuses the board's partisan approach, which for me was highlighted by the FDA/preemption editorial right above this one. To borrow a phrase from Fearless: "dishonesty [he's talking about individual dishonesty, but here I'd suggest institutionalized intellectual dishonesty] is a choice".
4.14.2008 11:55am
frankcross (mail):
I'm kind of amazed that people actually read the editorials on the left side of the NYT, because they are extremely biased and usually not very well reasoned. Of course, I feel much the same about the editorials on the left side of the WSJ, except the ideological bias is opposite. They both seem pretty intellectually dishonest to me.
4.14.2008 12:06pm
loki13 (mail):
Prof. Volokh,

I call shenanigans. Scalia only voted to overrule precedent in 3.6% of cases. ONLY? Once you take out the 'routine' cases from the Supreme Court, the cases distinguishing precedent, and the implicit overrules, there really aren't that many cases left to explicitly overrule, are there?

How about this- Scalia voted to overrule precedent more than any other justice with the exception of Justice Thomas, and voted to overrule precedent 163% more often than the most activist liberal Justice (Breyer), and 277% more often than the most Judicious (Souter).

Numbers are fun.
4.14.2008 12:11pm
PersonFromPorlock:
So far, everyone's missed the money quote:

Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes....

Senators, of course, precisely and dependably identify their positions when running for office, making it easy for voters to choose between candidates. ;^)
4.14.2008 12:59pm
Dilan Esper (mail) (www):
Let us assume that somebody runs in from Princeton University, and on the basis of the latest historical research, he or she has discovered a lost document which shows that it was never intended that the Supreme Court should have the authority to declare a statute unconstitutional. I would not necessarily reverse Marbury v. Madison on the basis of something like that.

How could he? The Court wouldn't have the power to reverse Marbury, because it would have to exercise judicial review to do so.
4.14.2008 1:04pm
Dilan Esper (mail) (www):
I'm with fearless on the merits. I think Professor Volokh is too quick to excuse the fact that Scalia was spinning the committee. He knew damned well that if he got on the Court, for instance, he would want to overturn Roe. He knew damned well that there wasn't anyone who was going to convince him otherwise. Yet he didn't tell the committee that and tried to make his position sound as if he was a bigger endorser of stare decisis than he actually was.

Look, in the end, it's up to the judiciary committee, if they wish to, to stop confirming judges until they give more information about their views. But let's not pretend that Scalia was anything other than a judge who (1) knew he wanted to overturn certain precedents once on the Court; and (2) knew enough not to tell the committee this and to spin himself as a great respecter of precedent.
4.14.2008 1:08pm
Fearless:
EV,

What Loki said. The 3.6% number is not a very meaningful number. The apt comparison is to the behavior of other justices.

When you use a word like strongly, you are saying that relative to a particular context. So, if someone were to say they strongly support the death penalty in 1600, you would take them to mean for all sorts of felonies besides murder. You would be surprised to find out that someone saying that in 1600 wanted the death penalty limited to only murder. In contrast, in 2008, if someone says they strongly support the death penalty, you would not be surprised at all if they mean only for murder. We live in a different social context, and strong support is relative to that context.

Before his Supreme Court hearings, Scalia was an appeals court judge. He already was very familiar with judicial behavior with regards to stare decisis. He knew or should have known that the relative standard of comparison that those confirming him would have in mind is judicial behavior, and not business behavior, political behavior, or some other sort of behavior.

No one would think that a strong supporter of stare decisis would never overturn a case. But, one would be quite surprised to find that someone who goes out of their way to say they strongly stare decisis would end up voting to overturn cases more than nearly any other justice. And not only that, talking about doing so in a rather cavalier manner.

I don't think it is debatable that the relevant comparison is between Scalia's behavior and that of other justices. And I don't think it is debatable that Scalia knew or should have known that it was this standard that people would have in mind when he used the adverb "strongly." At the very least, Scalia should have either dropped the adverb or qualified what he meant by strong support. And there is no reason to believe his failure to do so was unintentional, or that he was unaware of the likely affect of his words on his audience.
4.14.2008 1:24pm
betsybounds:
I think the custom has always been for judges to decline to say how they would rule in specific cases during the course of their confirmation hearings. In this way, we avoid the spectacle of judges campaigning for appointments to the federal bench, and that's a good thing. Neither Scalia nor anyone else would--or should--go any further than to declare a general favor for upholding precedent. It's also true that the federal judiciary, including the Supreme Court, contemplates the overturning of precedent in the very act of exercising judicial review. If they weren't going to contemplate such action, they would never even review cases that involved precedent, would they now?
4.14.2008 1:28pm
darelf:
"The 3.6% number is not a very meaningful number. The apt comparison is to the behavior of other justices. "

But that's the exact opposite of what's useful.

Scalia says he "strongly" follows it. Well, does he? The facts say "Yes".

But what's more important is that ALL of the justices follow it "strongly", which makes the statement ( and the question ) quite meaningless.

It's just more "when did you stop beating your wife"....
4.14.2008 2:53pm
David M. Nieporent (www):
Someone says they strongly support the death penalty.

Would you be surprised to learn they only support it only in cases of mass murder accompanied by gang rape and at least one week of excruciating torture for the victims, but oppose it in all other cases of murder or mass murder?
No. Next question?

I would be surprised if they endorsed all sorts of trivial arguments as reasons to overturn a death penalty that fit within the categories of death penalties they claimed to support, though.
4.14.2008 2:58pm
A.W. (mail):
I think your analysis valid in terms of saying Scalia cannot be simplified to "for precedent or against precedent." But that doesn't mean his views cannot be quantified and measured. Namely look at when he upholds precedent and when he doesn't, and then note when the case he was considering came down. I bet the "upholds" and "overturn" cluster at opposite ends of the timeline of american history. THAT can be quantified.

Although i think the central insight that you just can't know what you are getting on the court is an accurate one, which blows an empirical hole in Balkin's theory that the SC is a way to consolidate political gains. Scalia snuck by a very liberal congress, and who really predicted that Souter would turn out to be as liberal as he is?

In the end, judges should just be judges, politics aside. But thanks to the crazed adventure that was Roe v. Wade, we have too many people invested in lawless wearing the robes of law.
4.14.2008 3:33pm
Dilan Esper (mail) (www):
I think the custom has always been for judges to decline to say how they would rule in specific cases during the course of their confirmation hearings. In this way, we avoid the spectacle of judges campaigning for appointments to the federal bench, and that's a good thing. Neither Scalia nor anyone else would--or should--go any further than to declare a general favor for upholding precedent. It's also true that the federal judiciary, including the Supreme Court, contemplates the overturning of precedent in the very act of exercising judicial review. If they weren't going to contemplate such action, they would never even review cases that involved precedent, would they now?

That's fine, but the Senate has every right not to confirm such judges. In other words, the Senate can change the requirements as to what gets disclosed, by using its confirmation power.

Further, I might add I suspect that nominees (especially post-Souter) have to give detailed information about their views to the President before nomination. Given that fact, I don't see why the Senate shouldn't get the same information.
4.14.2008 3:34pm
Jay:
There's something more than a little disengenuous about liberals reacting with outrage that anyone might want to overturn a precedent /now/, when they're just fine with the Warren/Burger courts' decades-long, massive departure from precedent in a number of areas. Is the theory that even though it's illegitimate to overturn precedent, once you do it, you've created valid new precedent that no one should subsequently question? Also, I'm still waiting for the outrage over the failure to respect, say, Bowers v. Hardwick.
4.14.2008 4:37pm
betsybounds:
Dilan Esper:

Well if it's a common practice for all judicial nominees to refrain from stating how they would rule in specific cases and the Senate declines to confirm any nominee who so refrains, we'll soon be in the unhappy position of having no judges. I don't think that will work for long. The Senate has only recently become so demanding of judicial nominees, and it hasn't been an advance for them to do so. A commenter above made the point that the whole confirmation process has become a stalking horse for Roe v. Wade, and I think there is some validity to this suggestion. That awful decision has poisoned several generations of American jurisprudence by now.

There is no evidence that nominees "have to give detailed information about their views to the President before nomination." The Souter case was unusual in that Souter had virtually no "paper trail" or other history giving indications of his judicial philosophy when he was nominated. Not many other Supreme Court nominees fit that mold; most have numerous publications and lower court records to their credit and are therefore not in the position of joining in surprising decisions.
4.14.2008 4:46pm
jonzyx (mail):
First this question is of limited value. Does anyone actually foresee the senate confirming a nominee who says they disapprove of Stare Decisis and will actively seek to overturn precedents?

Second, a nominee may be a firm believer in 99.9% of the precedents of the court, but they don't know the majority of the cases they will hear before they are on court. The senate asks them what they think then, not how they are going to vote in the future.

Finally, justices are people and people change. Some get more conservative (Thomas), and some get more liberal (O'Connor). If someone has been on the court for 10+ years, it should not be that surprising that their votes don't stay the exactly the same.
4.14.2008 4:50pm
Dilan Esper (mail) (www):
There is no evidence that nominees "have to give detailed information about their views to the President before nomination."

Actually, there is plenty of evidence of it. You need to look at what politicians and presidential aides say, under the radar, to the leaders of activist groups who care about the Court.

And by the way, the concern about not having any judges is overblown. In most states, we have judicial ELECTIONS, which are far more arduous (and for a lesser job) than what I am talking about.
4.14.2008 8:11pm
Jagermeister:
This thread is yet another rehash of a canard. Absent a method for neutrally determining the "proper" outcome for the cases the court decides, and for determining if the cases accepted for review represent a "neutral" cross section of the available issues, then analyzing the results as "pro" or "con" some imaginary attribute is mental self-abuse. One can easily come to any conclusion one wishes by selection of the criteria. That the Times should conclude that Thomas and Scalia represent the reprehensible side of some criteria is a forgone conclusion, and their statement of such in an editorial is akin to "Dog Bites Man".
4.14.2008 11:20pm
steve jaros (mail):

I read the article, and unless i missed something, the authors failed to control for what i believe would be an important factor in how the justice responds to questions: the makeup of the Senate he or she is testifying to.

For example, i'd expect that a liberal judge (call her A) would feel more comfortable giving candidly liberal responses to senator's questions of judicial philosophy IF he/she were testifying before a senate with a clear democratic/liberal majority, where doing so would be unlikely to derail their nomination.

In contrast, a liberal judge (B) would be far more cagey and ambiguous, would bob-and-weave, on those things if testifying before a GOP-majority senate where coming across as clearly liberal would be fatal to their chances.

And likewise for a conservative judge in the opposite circumstances.
4.15.2008 7:41am
steve jaros (mail):
JONZYX wrote:

"First this question is of limited value. Does anyone actually foresee the senate confirming a nominee who says they disapprove of Stare Decisis and will actively seek to overturn precedents?"

This is a good point: The authors make much of their analysis about how nominees spoke of their commitment to precedent and then later voted, but the actual differences were trivial:

Justice Thomas, who was ranked #1 in "voting to alter precedent", and who the authors described as someone who shows the big disparity between hearing testimony and later voting (they say he has a voting pattern "far from his presumptive position" that he presented in his hearings) actually voted to alter precedent only 4.3% of the time!

So Thomas voted to uphold precedent 95.7% of the time, while Souter, ranked #9 in "voting to alter precedent", did so 98.7% of the time. Sorry, but that's just not a significant difference. And all the other justices fit within that very restricted range.

Ranking the justices from 1-9 masks the fact that ALL of the justices voted to uphold precedent in the overwhelming majority of cases.
4.15.2008 7:54am