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Title : "Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."
link : "Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."
"Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."
"I was struck by how it felt like this post could have been written today. Plus ça change."That's from my email. The 2005 post is "Luttig and 'super-stare decisis.'" I'll just print the whole thing (below) so you can read it and see how up-to-date it is.
First, here's what Justice Breyer said:
It is certainly true that we cannot base our decisions on whether they're popular or not with the people. Casey seemed to say we shouldn't base our decisions not only on that but whether they're going to -- whether they're going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions. Do you think there is that category? Is there -- or is it just normal stare decisis?
And here's what I wrote 16 years ago (when GWB needed to fill a Supreme Court seat):
Jeffrey Rosen re-airs the topic of "super-stare decisis" -- the notion that the precedential value of some cases is especially strong, perhaps so strong that you ought to have to agree in advance not to overrule them to win confirmation to the Supreme Court. In this connection, it's notable that Michael Luttig -- who seems to be on a very short list -- actually used the term in the only federal court case where it appears. Rosen doesn't mention the super-unusualness of the term, by the way. I just did a LEXIS search to bring you that information. The alternate term "superprecedent," which Rosen uses, does not appear even once is the federal court cases.
Anyway, here's what Luttig wrote:I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . . After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, ("This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.").Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.
In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.
But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.
Proposed line of questioning for the Luttig confirmation hearing (if such a thing should come to pass):
You wrote that the Supreme Court "intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis," but I am interested to know if you think that a Court can declare special precedential value for one of its decisions. You don't think a later Court is bound by a declaration like that, do you? And if not, do you think there is something to this idea that once people are told they have rights, that those rights are impaired by leaving them in a state of doubt? If the Court says these are your rights, people ought to be able to believe that they really have those rights, that they will still be there in the future, shouldn't they? Isn't that part of what rights are?
Boldface added.
Rights matter. The belief in rights is already eroded, perhaps especially on the left. Destroy the abortion right — after half a century — and you open a path of terrible destruction.
There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property." Look for a revival of the Critical Legal Studies "critique of rights."
Now, back to Justice Breyer's question yesterday. First, I think he's got something new that he's calling "super-stare decisis." The idea under discussion in 2005 had mostly to do with the fact that the Court had specifically considered overruling Roe, so that the application of stare decisis was itself stare decisis. Breyer's idea is about political pressure against against the precedent: The stronger the pressure, the more the Court ought to resist giving the people what they want. Since Breyer calls that "paradoxical," I infer that he thinks the notion is a tad perverse.
The lawyer for the respondents (Julie Rikelman, for the Jackson Women's Health Organization) goes back to the super-stare decisis idea we talked about in 2005: "I think it is precedent on precedent, Your Honor, because Casey did the stare decisis analysis for Roe, so the question before this Court is whether that stare decisis analysis was egregiously wrong."
Loading...
"I was struck by how it felt like this post could have been written today. Plus ça change."
That's from my email. The 2005 post is "Luttig and 'super-stare decisis.'" I'll just print the whole thing (below) so you can read it and see how up-to-date it is.
First, here's what Justice Breyer said:
It is certainly true that we cannot base our decisions on whether they're popular or not with the people. Casey seemed to say we shouldn't base our decisions not only on that but whether they're going to -- whether they're going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions. Do you think there is that category? Is there -- or is it just normal stare decisis?
And here's what I wrote 16 years ago (when GWB needed to fill a Supreme Court seat):
Jeffrey Rosen re-airs the topic of "super-stare decisis" -- the notion that the precedential value of some cases is especially strong, perhaps so strong that you ought to have to agree in advance not to overrule them to win confirmation to the Supreme Court. In this connection, it's notable that Michael Luttig -- who seems to be on a very short list -- actually used the term in the only federal court case where it appears. Rosen doesn't mention the super-unusualness of the term, by the way. I just did a LEXIS search to bring you that information. The alternate term "superprecedent," which Rosen uses, does not appear even once is the federal court cases.
Anyway, here's what Luttig wrote:I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . . After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, ("This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.").Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.
In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.
But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.
Proposed line of questioning for the Luttig confirmation hearing (if such a thing should come to pass):
You wrote that the Supreme Court "intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis," but I am interested to know if you think that a Court can declare special precedential value for one of its decisions. You don't think a later Court is bound by a declaration like that, do you? And if not, do you think there is something to this idea that once people are told they have rights, that those rights are impaired by leaving them in a state of doubt? If the Court says these are your rights, people ought to be able to believe that they really have those rights, that they will still be there in the future, shouldn't they? Isn't that part of what rights are?
Boldface added.
Rights matter. The belief in rights is already eroded, perhaps especially on the left. Destroy the abortion right — after half a century — and you open a path of terrible destruction.
There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property." Look for a revival of the Critical Legal Studies "critique of rights."
Now, back to Justice Breyer's question yesterday. First, I think he's got something new that he's calling "super-stare decisis." The idea under discussion in 2005 had mostly to do with the fact that the Court had specifically considered overruling Roe, so that the application of stare decisis was itself stare decisis. Breyer's idea is about political pressure against against the precedent: The stronger the pressure, the more the Court ought to resist giving the people what they want. Since Breyer calls that "paradoxical," I infer that he thinks the notion is a tad perverse.
The lawyer for the respondents (Julie Rikelman, for the Jackson Women's Health Organization) goes back to the super-stare decisis idea we talked about in 2005: "I think it is precedent on precedent, Your Honor, because Casey did the stare decisis analysis for Roe, so the question before this Court is whether that stare decisis analysis was egregiously wrong."
Thus articles "Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."
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