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| SUPREME COURT WATCH | |
 June 2003 
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| As the Supreme Court's 2002 term came to a close, the high court marked another important chapter in legal history, handing down opinions on cases testing both decades-old laws as well as the limits of new technology in the public domain. Jan Crawford Greenburg, regular NewsHour analyst and Supreme Court reporter for The Chicago Tribune, and Professor Stephen Wermiel of American University's Law School answer your questions on the high court's procedures and the impact of its latest term. |
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| Don Lodzinski from Green Bay, Wisconsin asks: I don't know if there is an objective mechanical procedure, but I was wondering if there is some rule used to determine when a previous U.S. Supreme Court precedent should be overturned? Regardless, what are some actual reasons for overturning prior decisions? Do you recommend any articles or books on these topics? Thanks for your consideration. Jan Crawford Greenburg of The Chicago Tribune answers: There's no hard and fast rule, but a principle known as "stare decisis" -- or let the decision stand -- greatly restrains the Supreme Court from overturning opinions at will. Here's how Clarence Thomas explained the principle during his 1991 confirmation hearings: "I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case." When the court overturns a case, it generally says that either society's thinking on the issue has changed or that the court was just wrong when it first took up the issue. In overturning its 1986 Bowers v. Hardwick decision, which had upheld a Georgia sodomy law, Justice Kennedy said last month in the Texas case that the decision was "not correct when it was decided, and it is not correct today." The court has grappled in recent years with whether to overturn several prominent cases. In 1992, for example, it refused to overturn Roe v. Wade. With three Republican appointees joining to write the key decision, the court said American women relied on Roe and that the court would not set it aside. In 2000, the court refused to overturn its landmark Miranda decision, holding that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." The court noted that it has overruled precedents where its own later decisions have clearly eroded the legal basis upon which it took the original stance. But that had not occurred with Miranda, the court said. And just last term, it overturned a 13-year-old decision that had allowed states to execute mentally retarded criminals. The court said "much has changed" since that ruling, finding that society had reached a consensus that such executions violate standards of decency. The court concluded that the Constitution's prohibition against cruel and unusual punishment prohibited executing the mentally retarded. For more information, I'd go straight to the source and read some of these opinions. They're available online and can give you a more detailed explanation of why the court did or didn't adhere to stare decisis. Of course, the dissents have a different take and are always worth looking at. I've got one more suggestion. You obviously have an interest in the court and legal issues, so I'd also recommend you pick up my two favorite reference guides, the Oxford Companion to the Supreme Court and the Oxford Companion to American Law. Both are invaluable for quick explanations of legal terms and doctrines and also provide well-researched and insightful sketches of the court, the justices and important cases. Stephen Wermiel of American University Law School answers: The legal term for a court respecting precedent is "stare decisis," which is Latin for "let the decision stand." In our system, precedent has always been a strong form of guidance, but it has never been an inviolate barrier to judges reaching a new or different result in a new case. Often, judges try to "distinguish" a precedent by pointing out how a new case differs from the last. But sometimes the Supreme Court simply decides that either a decision was wrong when it was first made and should be overruled or has outlasted its utility and should be overruled. There is no fixed test for when to respect precedent. The short answer is that if a majority of the court is so inclined, they will find a way to overrule a prior decision. In the 1992 abortion decision, Planned Parenthood v. Casey, Justices O'Connor, Kennedy and Souter wrote a joint opinion in which they announced why they felt it was time to accept the 1973 Roe v. Wade decision as settled precedent. They said that the court, in deciding whether to overrule a precedent, should consider: whether the prior ruling has proved unworkable; whether society has relied on the prior legal doctrine; whether the law has changed or evolved in a way that leaves the old doctrine behind; and whether facts have changed so that the old doctrine no longer has any real application. Yet even as they used this test to reaffirm Roe v. Wade, the three Justices voted to overrule parts of several other abortion decisions, and then the Supreme Court never referred to this test again until it received a brief and partial acknowledgement in Justice Kennedy's majority opinion in the Texas sodomy case. I am not
sure whether you want to get into reading law review articles, but an exhaustive
one on this subject, although one that predated the Casey decision, was written
by Professor Michael Gerhardt of William and Mary Law School in 1991 in Volume
60 of George Washington University Law Review at page 68, entitled, "The
Role of Precedent in Constitutional Decision-Making and Theory."
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