Precedents Begin to Fall for Roberts Court
By LINDA GREENHOUSE
New York Times
WASHINGTON, June 20 — No Supreme Court nominee could be confirmed these days without paying homage to the judicial doctrine of “stare decisis,” Latin for “to stand by things decided.” Yet experienced listeners have learned to take these professions of devotion to precedent “cum grano salis,” Latin for “with a grain of salt.”
Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?
It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.
The fact is that the court regularly revisits and reconsiders its precedents, as Chief Justice William H. Rehnquist, the current chief justice’s former boss and mentor, once observed succinctly. “Stare decisis is not an inexorable command,” he said in a 1991 opinion that included, in a page and a half of small type, a list of 33 precedents that the court had overturned in the previous 20 years.
So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)
(Continued here.)
New York Times
WASHINGTON, June 20 — No Supreme Court nominee could be confirmed these days without paying homage to the judicial doctrine of “stare decisis,” Latin for “to stand by things decided.” Yet experienced listeners have learned to take these professions of devotion to precedent “cum grano salis,” Latin for “with a grain of salt.”
Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?
It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.
The fact is that the court regularly revisits and reconsiders its precedents, as Chief Justice William H. Rehnquist, the current chief justice’s former boss and mentor, once observed succinctly. “Stare decisis is not an inexorable command,” he said in a 1991 opinion that included, in a page and a half of small type, a list of 33 precedents that the court had overturned in the previous 20 years.
So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)
(Continued here.)
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