InfinitePrep

OVERRULING UNRAVELS PRECEDENT AND DEVASTATES RULE OF LAW – RISKS A SLIPPERY SLOPE

GERHARDT 2006 – PROF CONLAW UNC

SUPER PRECEDENT, 90 Minn. L. Rev. 1204

Chief Justice Roberts was a model for avoiding pitfalls in the confirmation process. It is possible he may have been too good a model. He constantly espoused respect for precedent throughout his hearings. He may or may not have been a firebrand when he worked in the Office of the Attorney General, the White House, or in Office of the Solicitor General, but he was not a firebrand when he appeared in front of the Senate  [*1228]  Judiciary Committee. He no doubt understands that President Bush would love to see him not only vote as Chief Justice Rehnquist did but also move the Court further to the right. Yet, John Roberts the nominee accepted some judicial decisions inconsistent with that political agenda, including those recognizing a marital right of privacy, ⁹⁸ the framework for analyzing separation of powers conflicts, ⁹⁹ the constitutionality of the 1965 Voting Rights Act, ¹⁰⁰ and heightened scrutiny for gender classifications. ¹⁰¹ Roberts even acknowledged Roe as “settled law,” and recognized that overruling a precedent would be “a jolt to the legal system.” ¹⁰² One has to assume that some overrulings would produce more of a “jolt” to the system than others, and some might fatally electrocute the system. While Chief Justice Roberts suggested it was not unthinkable for the Supreme Court to overrule settled law, he made abundantly clear that his philosophy of judicial modesty is grounded, at least in part, on respect for what came before. Roberts acknowledged that predictability, stability, consistency, and reliance are values to be taken into account in constitutional adjudication, and it would seem to follow that these values ought to count in most cases. ¹⁰³ It further follows that there may be at least some instances in which the values promoted by fidelity to precedent become compelling. A Court that overrules too many precedents not only sets a bad example for the Courts that follow (because it provides no incentive to respect the work of its predecessors), but also signals permission for other branches to view its decisions with the same lack of respect with which it views them. A healthy respect for precedent means learning to live with decisions with which you disagree. When Roberts went further to describe himself as a “bottom-up” kind of judge, ¹⁰⁴ he signaled that his inclination is to decide cases incrementally and to infer principles from the records of the cases below. A bottom-up judge is willing to learn from experience, which necessarily means that a good deal of our experience has to be left in tact.