The Roberts Court and the Role of Precedent With new Chief Justice John Roberts at the helm of the U.S. Supreme Court and Justice Samuel Alito replacing Justice Sandra Day O'Connor, the direction of the court has changed. Both promised to honor precedent — but in their first full term together they reversed a number of key precedents.
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The Roberts Court and the Role of Precedent

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The Roberts Court and the Role of Precedent


The Roberts Court and the Role of Precedent

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This is MORNING EDITION from NPR News. I'm John Ydstie.


And I'm Renee Montagne.

For decades, conservatives have yearned for control of the U.S. Supreme Court. They've been frustrated in achieving that goal, despite having as many as seven Republican appointees on the court. This term, though, conservatives seemed to have reached the promise land. With new Chief Justice John Roberts at the helm and Justice Samuel Alito replacing Justice Sandra Day O'Connor, the direction of the high court - for this term, at least - has been transformed.

NPR legal affairs correspondent Nina Totenberg has this look back.

NINA TOTENBERG: For conservatives, it was pretty close to the best of times, and for liberals it was pretty close to the worst. Although Roberts and Alito both promised that their confirmation hearings to honor precedent whenever possible, in their first full term together, they effectively reversed a number of key precedents - in each case, by a five-to-four vote.

The court upheld the federal law banning so-called partial birth abortions, though it has struck down a nearly identical state law just seven years ago. The court effectively eviscerated a key provision of the McCain-Feingold campaign finance law, even though the court had upheld that provision just three years ago.

In employment discrimination, the court dramatically limited the ability of workers to file employment discrimination claims. On school desegregation, the court limited the ability of school boards to adopt voluntary desegregation plans that use race as a factor in assigning some students to schools. And in each of these decisions, the key votes in the majority claimed to be adopting a modest and limited approach.

Kathleen Sullivan is director of the Stanford University Constitutional Law Center.

Professor KATHLEEN SULLIVAN (Director, Stanford University Constitutional Law Center): What we actually have is a pretty bold conservative agenda, but it's clothed in that gentle language of judicial modesty and restraint.

TOTENBERG: Or as Stanford professor Pam Karlan puts it...

Professor PAM KARLAN (Law, Stanford Law School): I think practically, the court has overruled a number of cases. But the chief can say with a straight face, I didn't vote to overrule it. I simply limited the earlier decision to its facts, or I refused to extend the earlier decision.

TOTENBERG: The court was more polarize than at any time in recent memory, with fully one-third of the court's decisions reached by a five-to-four vote. And the liberals spoke with an unusually unified voice in dissent. As Justice Stephen Bryer put it in the school desegregation cases, it is not often in the law that so few have so quickly changed so much. The court's new swing justice, Anthony Kennedy, was in the majority in each of the 24 five-to-four rulings.

Supreme Court scholar Tom Goldstein.

Professor TOM GOLDSTEIN (Supreme Court Litigation, Stanford Law School): No justice has had so strong an influence on a Supreme Court term in at least 40 years. When you talk about the raw number of decisions, where he dissented only twice, or the five-four decisions where he was never in dissent, it was unquestionably Justice Kennedy's term, and it looks like its Justice Kennedy's court.

TOTENBERG: Yale law professor Akila Mar(ph) says Kennedy is the lynchpin.

Professor AKILA MAR (Law, Yale): John Roberts presides, but Kennedy (unintelligible).

TOTENBERG: Notre Dame law professor Rick Garnett adds this.

Professor RICK GARNETT (Law, Notre Dame): Justice Kennedy sees himself as the justice who's mediating between this two increasingly polarized waves of understanding the Constitution, and it seems to me that he is likely to be relishing it.

TOTENBERG: But all is not peace and love on the conservative side of the court. Justices Antonin Scalia and Clarence Thomas, in a number of cases, wanted to go farther than Roberts and Alito. In a campaign finance case, Scalia accused Roberts of effectively overruling the court's past decision without saying so. This faux-judicial restraint, said, Scalia is judicial obfuscation.

Again, Tom Goldstein.

Professor GOLDSTEIN: Justice Scalia is saying in his opinion that the chief justices' modesty, his unwillingness to overturn these long standing precedents is actually phony, that he's not being honest about how conservative he is.

TOTENBERG: Stanford's Kathleen Sullivan.

Prof. SULLIVAN: It's as if Justices Scalia and Thomas would like to come in and blow things up. And Chief Justice Roberts and Justice Alito take some of these old precedents, and instead they chip away at the foundation so that they'll blow over in a strong wind. But it's a very different approach.

TOTENBERG: George Mason University professor Naomi Raul(ph) is a former law clerk for Justice Thomas.

Professor NAOMI RAUL (Law, George Mason University): There's agreement, perhaps, among some of the conservatives and some of the liberals that the minimalists, as it were, are being less than forthright in what they're doing.

TOTENBERG: Ted Olson, who served as solicitor general in the first Bush administration, says Scalia is worried about not solidifying the new conservative approach while he can.

Mr. TED OLSON (Former U.S. Solicitor General): I think he's looking into the future, who's going to be the next justice on the court and how will that change the balance? And if the court doesn't do away with precedents that he thinks are unacceptable and wrongly decided, they're going to be around to come back to bite him later on.

TOTENBERG: But Columbia law professor Michael Dorf, a former Kennedy clerk, says that Justice Kennedy - who so often casts the pivotal fifth vote - is more temperamentally in tune with the more modest approach.

Professor MICHAEL DORF (Law, Columbia University): Part of what you're seeing may be that he finds Roberts and Alito less scary than Justices Scalia and Thomas, because they aren't bomb throwers. And so it's possible that the Roberts strategy of incremental moves and not acknowledging when he's overturning precedent is appealing to Justice Kennedy.

TOTENBERG: What's more, says Tom Goldstein, conservatives still win in the end.

Prof. GOLDSTEIN: The differences between the conservatives don't amount to a hill of beans. It's all about theory. In practice, five justices on the right agreed on the result and were willing to change the law in the direction they thought it had to go.

TOTENBERG: Perhaps no case better illustrates that than the abortion case. Not only are states now freer than before to regulate abortion, many observers note how the court's emphasis had changed dramatically from the doctor and patient to the unborn child.

George Annas, chairman of the Department of Health, Bioethics and Human Rights at Boston University, contends that until this term's abortion decision, most scholars considered the doctor-patient relationship to be protected in some fundamental constitutional sense.

Professor GEORGE ANNAS (Chairman, Department of Health, Bioethics and Human Rights, Boston University): That as long as physicians were practicing for the best interests and health of their patients with their patients' informed consent and consistent with good medical practice, the government could not interfere with that relationship. That no longer is the law.

TOTENBERG: In many cases this term, the court majority did not rule on the merits of the case, but ruled instead that individuals had no right to be in court. The justices, for example, by a five-to-four vote ruled that taxpayers could not challenge the president's faith-based initiative.

One small case that many scholars consider emblematic of the court's new formalism was a ruling that a convicted defendant had lost his right to appeal because his lawyer relied on a judge's order to file the appeal within 17 days, instead of the 14 days required by the statute.

The judge had erroneously factored in the weekend in setting the deadline. The court's five-justice majority overruled a line of previous decisions to say there should be no flexibility when such errors inadvertently occur.

Again, Columbia's Michael Dorf.

Prof. DORF: These results strike me as simply mean, in that they enforce a kind of strict letter-of-the-law approach without any obvious benefit. This struck me, at least, as something out of a Dickens novel, or perhaps even Kafka.

TOTENBERG: That echoes what the four liberal dissenters said in many cases. But they did not prevail. At his confirmation hearing, Chief Justice nominee John Roberts said he viewed the role of a judge as that of an umpire to call balls and strikes.

Stanford law professor Pam Karlan.

Prof. KARLAN: One of the most famous umpires in major ball history, Bill Clinton, was once asked was that a ball or a strike? And he said, you know, it's not a ball or a strike until I say it is. So this idea of the umpire as someone who just follows a rulebook has been kind of exploded this term.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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