Justice Kavanaugh and Letting Sleeping Dogs Lie
Tuesday morning the Senate will open hearings on the confirmation of Justice Brett Kavanaugh’s nomination to the Supreme Court. The candidate has lived an honorable life, is well liked, enjoys a reputation as a good and decent man, and is an experienced and imminently qualified jurist who has served a decade on the most important Court of Appeals in the land.
So, what can we expect of the hearing?
We can expect the hearing to be interrupted by vulgar screaming demonstrators in mass produced t-shirts, we can expect Justice Kavanaugh and his family to be subjected to sustained scurrilous attacks by self-serving, self-promoting, shameless Senators who have already made up their mind but see theatrical opportunity for personal advancement in permanently damaging the man’s good character.
Okay. We live with that.
But hidden among the garbage, we can also expect a few nuggets of Constitutional law worthy of discussion. Much of it will center on past case decisions of the Supreme Court. In those discussions, we will probably hear phrases like “Case Precedent” and “Stare Decisis”. Important concepts. What do they actually mean? And why are they important?
One example relevant to the hearings: Lines of questioning about Roe v Wade promise to be repetitive. Roe v Wade is the case which first held the Right to Privacy encompasses the right of a woman to terminate a pregnancy under certain circumstances. The inquiries will concern the nominee’s commitment to Roe v Wade as “Case Precedent” and whether he may or may not vote to overrule the decision. This is where the rules of “Stare decisis” come into play.
The words are, obviously, Latin. They mean “standing by the decision.” The term is actually derived the from the Latin phrase, “stare decisis et non quieta movere,”or “stand by matters that have been decided and do not disturb what is tranquil.”
A lot of wisdom in that. As Geoffrey Chaucer said in 1380, “it is nought good a slepying hound to wake.” Or as us country boys would say “Let sleeping dogs lie.” But of course, we lawyers have to dress it up a tinge. We say, “It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue.”
Makes sense when you think about it. To the extent possible we want our law to be predictable, stable and secure. We want it to be uniform, efficient and we want courts to act with a modicum of constraint in changing what has become accepted law.
One Supreme Court Justice put it thus, “(u)nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”
And as the famous Justice Benjamin Cardozo said, “(t)he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”
All fine sentiments, but is the worry that changing the make-up of the Supreme Court could endanger established case precedent real? After all, Chief Justice Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is, . . .”
In fact, the Court has reversed itself over two hundred times and three quarters of those were Constitutional decisions. The most famous example is the landmark decision of Brown v Board of Education which reversed previous court’s decision which had sanctioned “Separate but Equal” in the field of education.
I recently read an article in a legal journal about a book I knew about, but which I’ve never read and don’t intend to. The book is an 800-page tome named “The Law of Judicial Precedent.” As Justice Neil Gorsuch stated during his confirmation hearings, “It makes an excellent doorstop.”
Interestingly enough, not only was Justice Gorsuch among many other legal scholars a contributing author, but so was Justice Kavanaugh.
The book (I choose to rely on the article’s summary in the legal journal than to read such a monstrosity), theorizes the doctrine of stare decisis applies less rigidly in constitutional cases than it does in statutory cases because the correction of an erroneous constitutional decision by the legislature is well-nigh impossible. For example, the Congress can more easily pass a law correcting a Court decision about a Coal mine than one interpreting Free Speech.
On the other hand, the treatise states, “If at least five members of the Court are sufficiently convinced that the law has gone gravely wrong, then the Court will exercise its prerogative to overrule the earlier case and put things aright.”
But like legal matters, even Judges (although local ones especially have to be frequently reminded of this) are not free to willy-nilly rule one way or the other. The values of reliable precedent must be upheld so the court uses factors in analyzing when a prior case should be overruled. Because of space concerns I won’t go over all of the factors, but it is well to note that the Court used such an approach in its recent decision to overrule case precedents involving “union closed shops.” After weighing the value and reliability of these case precedents, they found it was unconstitutional to require all government employees to pay union dues whether they belonged to the Union or not.
The vote was 5-4. Gorsuch (and Kennedy) was in the majority.
For more Cline on the Constitution and other writings by Phil Cline visit philcline.com