Balls and Strikes My Foot

John Roberts Is Just a Liar

Roberts and Alito and stare decisis: just saying what they needed to say, i.e., lying.

Count this if you must as my attempt to "intimidate" John Roberts, but I was reading back through his statements about stare decisis at his hearings. What a liar.

Geoffrey Stone of the University of Chicago Law School is one of our leading legal scholars, so let me hand it over to him here for a few grafs, from a piece he wrote for HuffPo that's five years old but rings awfully true as we count down the days until the Supreme Court seems likely to hand down its most striking overturning of a law since the 1935 National Recovery Act decision. Take it away Geoff:

John Roberts assured the Senate Judiciary Committee that judges must "be bound down by rules and precedents." Invoking Alexander Hamilton and James Madison, he affirmed that "the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability," and "integrity in the judicial process." Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly "unworkable" over time. But in general, "a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."

Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a fundamental part of our legal system." This principle, he explained, "limits the power of the judiciary" and "reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, it is "not an inexorable command," but there must be a strong "presumption that courts are going to follow prior precedents."

It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.

Now, they of course left themselves wiggle room in that "inexorable command" part. And I know conservatives are already thinking, well, Tomasky, were you such a fan of precedent when the question was civil rights or abortion? It's a fair question, but there are differences. One is that those big Supreme Court decisions of the Warren era weren't about legislation. I can't think of a case when the Warren Court overturned a prominent federal law, clearly preventing the will of Congress (and therefore, in our governmental theory, of the people) from being implemented, especially a law just two years old.

And when the Warren court did reverse past court precedent, it often did so with large and carefully constructed majorities. This is a very important point. Brown v. Board, for example, which overturned a previous court ruling of 58 years prior, was 9-0. Repeat. 9-0. (Even Roe v. Wade, which did not involve stare decisis, was a 7-2 vote.) That's a far cry from an ideological split 5-4 decision, which I suspect we're going to have, on a law just two years old.

Roberts--and Alito--simply lied. Balls and strikes. Right. They are politicians in robes, nothing more.