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Handout #1:
WHAT THE JUSTICES THINK ABOUT PRECEDENT AND STARE DECISIS


Directions:
You will be working with two other students on this assignment.

1. Divide up the quotes below so you each have the same number of quotes to work with. (If necessary, you can double up and have two of you working on the same quote.)

2. Start by reading your quotes silently. As you read them, underline passages you think are particularly important. Circle words or passages that you have questions about. Then try to put the quote in your own words or summarize it.

3. When all three of you finished reading the quotes, explain them to one another and then work together to answer the questions at the bottom of the handout.


In June 2005, Justices Sandra Day O'Conner and Stephen G. Breyer participated in a taped interview with students in a question-and-answer session sponsored by the Annenberg Foundation Trust at Sunnylands. This interview was filmed at the Supreme Court and can be found at "Supreme Court Q and A," 2005, http://www.annenbergclassroom.org/AssetDetail.aspx?MyID=1045

When asked about what might influence the justices to overturn a precedent, Justice O'Connor said: "Well, I think you have to be able to persuade at least five members of this nine-member Court that an earlier judgment and opinion decided by this Court is now clearly wrong. That is possible to do. We can be persuaded at times that something we decided earlier has become, over time, no longer defensible.

And the most clear big example of that was in Brown v. Board of Education when the Supreme Court decided to overrule the old Plessy v. Ferguson principle that you could have separate public facilities for people based on race, provided they were roughly the same. You know, the same school, one for people of the black race, one for people of the white race. That's what Plessy said was all right. The members of this Court unanimously concluded that just was not valid and it overturned it, [Plessy.]

So what standard is required? It's just a standard of persuading at least five members of the Court that an earlier precedent is clearly wrong and shouldn't remain the law of the nation."

Justice Breyer added:
"That last phrase is very important. Every one of us understands that if you change the law too often, even when it was wrong before, people cannot live their lives. They can't plan how to live; they can't plan their societies. So no one thinks just because a case is wrong that you are going to overturn it. They have to both think it was wrong and think it's harmful and causing a lot of trouble.

Now, if you said never overturn a case, we'd still live in a society that had racial segregation. That would be terrible. So, of course, sometimes you have to overturn a case. But five people [justices] have to agree it was wrong then and it's wrong now and it's causing a lot of harm to the point where even though people have to plan their lives, we better get rid of it. That happens very rarely."


John Roberts at his U.S. Senate confirmation hearing, September 2005:

"The principles of stare decisis look at a number of factors. Settled expectations is one of them. ... Whether or not particular precedents have proved to be unworkable is another consideration on the other side. ... I do think it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness."


Stephen Breyer, writing for the Court in Randall v. Sorrell, the Vermont campaign finance reform decision, 2006:

"The Court has often recognized the 'fundamental importance' of stare decisis, the basic legal principle that commands judicial respect for a court's earlier decisions and the rules of law they embody. The Court has pointed out that stare decisis 'promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'

Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional and requires special justification."


QUESTIONS TO CONSIDER:

A. Based on what you read, why is adhering to precedent (or stare decisis) important?



B. Based on what you read, what do you think would be acceptable grounds for reversing an existing precedent?




Produced by Thirteen/WNET New York Funded by New York Life