Sunday, July 24, 2005
Specter on "superprecedents"
In an op-ed in today's NYT, Sen. Arlen Specter (R-PA), chairman of the Senate Judiciary Committee, writes of the upcoming hearings on Supreme Court nominee John G. Roberts (emphasis mine):
The confirmation precedents forcefully support the propriety of a nominee declining to spell out how he or she would rule on a specific case. Abraham Lincoln is reputed to have said pretty much the same thing: "We cannot ask a man what he will do, and if we should, and he should answer us, we would despise him. Therefore, we must take a man whose opinions are known."
This, of course, does not foreclose probing inquiries on the nominee's general views on jurisprudence. For example, it would be appropriate to ask how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision. Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.
My Westlaw searchs of the "allfeds" library — which includes basically all the federal cases that have been entered into Westlaw's enormous database, going back many decades and for every level and location of federal court — for "superprecedents," "super-precedents," "superprecedent," and "super-precedent" return zero hits. Which is to say, as best I can tell, the term has never, ever been used by any federal court, certainly including the Supreme Court going all the way back.
A Google search for "superprecedents" turns up one hit, an article entitled "Aging and Productivity Among Judges: Some Empirical Evidence from the High Court of Australia."
A Google search for "super-precedents" turns up one more hit, which is a (decidedly not safe-for-work) pornographic comics page.
A Google search on "superprecedent" helpfully asks if I really meant to ask about "super presidents," but offers up another three hits. One's in German, I think, and appears to have something to do with aviation. Another is about the Supreme Court of Canada's self-citation practices from 1989-1993. And the third, finally, does appear to have something to do with American law, since it's an outline from a civil procedure class at Arizona State University in the Spring 2000 semester, and it uses the term exactly once, without definition.
A Google search for "super-precedent," singular but hyphenated, adds an article about a world-class women's swimmer in the 1930s who supposedly set a "super-precedent" for Janet Jackson's Super Bowl wardrobe malfunction. And there's another hit that appears to be about the "Parents’ Council of Scoil Realta na Maidine" (which I gather is in Ireland) setting a super precedent with an amateur art exhibition. But this search also turns up this post, which oddly enough seems to be a short discussion of collateral estoppel/res judicata (probably someone's notes from a law school class), except that it's on an internet domain named "brainporn.org." And that same search also turns up this post from November 2004, on a blog I'm unfamiliar with, which seems to suggest that the author has heard this term used about Roe v. Wade in the past by ... Senator Arlen Specter.
Does anyone out there have a clue what Sen. Specter is talking about? Because I certainly don't recognize this term. And it's kind of freaking me out to read the chairman of the Senate Judiciary Committee suggesting in the New York Times that a Supreme Court nomination might turn in part on a concept apparently unknown to federal jurisprudence (as least as written by any federal court), but in any event entirely unknown to me.
UPDATE (Sun Jul 22 @ 1:50pm): Prof. Althouse and her readers also have some interesting comments on this, as have mine. [Edit: To be more specific, her readers pointed out yesterday the Landes/Posner law review usage of the term "superprecedents" in 1976 to mean something different from what Sen. Specter meant, and my readers pointed out Fourth Circuit Judge Luttig's use of the similar term "super-stare decisis" for Roe/Casey in what I still believe can't be interpreted as a new Supreme Court-level doctrine of stare decisis. These are the same two points brought up today by emailers to the Corner, many of whom appear to have also emailed me, and some of whom may not have read the cross-linked post and/or the comments on both that post and this one. Prof. Althouse and I are both blessed with wonderful commenters and emailers, and their efforts are usually worth reading, and particularly so on these two posts. — Beldar, Mon Jul 23 @ 1:15pm]
UPDATE (Mon Jul 23 @ 11:15am): I'm flattered that Ramesh Ponnuru and Jonah Goldberg have linked this post. And it would be a considerable understatement for me to say that Sen. Specter is not among my all-time favorite Republicans. But my question wasn't entirely rhetorical or snarky; I genuinely did, and do, want to know where Sen. Specter came up with this term. If the term (and the apparent concept) is as novel and obscure as it would seem, but it's nevertheless to be the basis for Senate questioning of Judge Roberts, then surely the questions should make that clear, as in: "Are you in favor of creating a new principle as part of the law of stare decisis, one never before expressly adopted by any federal court, to the effect that certain 'superprecedents' should be (in some yet undefined way) extra-hard to overrule?" If Prof. Althouse's speculation is right — that this term is intended to be a way to extract from Judge Roberts a particular pre-commitment about Roe — then it ought to be clear to all observers that Sen. Specter (or others using this term and concept) are asking him to commit to something radically different than current or historical law on stare decisis, and something that would presumably have prevented, say, Brown v. Board of Education from overruling (oft-previously-reaffirmed) Plessy v. Ferguson.
UPDATE (Mon Jul 23 @ 1:30pm): A helpful reader emailed me with a link to the very fine confirmthem.com post referenced yesterday in my comments, which also discusses Sen. Specter's op-ed, Judge Luttig's use of the term "super-stare decisis," and how the idea of "superprecedents" might play out in Judge Roberts' confirmation hearing.
Other weblog posts, if any, whose authors have linked to Specter on "superprecedents" and sent a trackback ping are listed here:
» On the cusp of Judge Roberts' confirmation hearings.... from Media Lies
Tracked on Jul 25, 2005 4:03:43 PM
» Super Stare Decisis from RightPundit
Tracked on Jul 25, 2005 11:38:29 PM
» Specter again floats the notion that Roe is a "superprecedent" from BeldarBlog
Tracked on Sep 7, 2005 12:24:15 AM
Tracked on Sep 13, 2005 9:11:29 PM
(1) jvg1249 made the following comment | Jul 24, 2005 8:26:36 AM | Permalink
Well, Sen. Specter is a legend in his own mind. So, this seems perfectly natural.
(2) ed made the following comment | Jul 24, 2005 9:07:50 AM | Permalink
Sorry Beldar, no idea. Frankly whenever Specter's mug comes onto my tv screen all I really see is Nosferatu.
It's terrible I admit, but there you go.
(3) Rod Smith made the following comment | Jul 24, 2005 10:57:16 AM | Permalink
Memo for Bill Frist:
The simple way to deal with Senator Spector is to create a new committee for him to chair. Call it "Laundry and Morale." Surely both clean shirts and good spirits are necessary and proper for a happy and collegial Senate.
Who would dare disagree? Let the leadership begin! You might even create a "superprecedent!"
(I couldn't resist!)
(4) Cranky Lawyer made the following comment | Jul 24, 2005 12:31:01 PM | Permalink
But isn't there the concept of SCt precedent that isn't going anywhere (e.g., Roe, Griswold, Brown), as opposed to SCt precedent that is so narrow (e.g., Shelley v Kramer) or so flimsy (e.g., Wickard, though some recent cases call this example into question) that it carries little weight?
(5) Taeyoung Jensen made the following comment | Jul 24, 2005 12:40:34 PM | Permalink
RE:"But isn't there the concept of SCt precedent that isn't going anywhere (e.g., Roe, Griswold, Brown), as opposed to SCt precedent that is so narrow (e.g., Shelley v Kramer) or so flimsy (e.g., Wickard, though some recent cases call this example into question) that it carries little weight?"
I thought that was just the idea of certain precedents having become so isolated by subsequent distinguishing decisions that courts no longer relied on them. Maybe it comes up in Casey's paen to stare decesis? I believe Scalia is the one who thinks the underlying "flimsiness" of a decision's reasoning ought to be a factor in whether it can be overturned subsequently. Working 100% off faulty memory here, though.
(6) Jon Sandor made the following comment | Jul 24, 2005 12:45:21 PM | Permalink
Confirmthem dot com has something on this, a quote from Luttig.
"I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, to be a decision of super-stare decisis with respect to a woman’s fundamental right to choose whether or not to proceed with a pregnancy. [citations omitted]."
Hmmm. Couldn't find that on confirmthem.org, but found this on Slate:
In 1998, Michael Luttig (U.S. Court of Appeals for the 4th Circuit) granted a stay that had the effect of allowing a Virginia ban against partial-birth abortion to go into effect. After the Supreme Court struck down Nebraska's parallel law in Stenberg v. Carhart, Luttig reversed his earlier decision and lifted the stay, which had the effect of throwing out the Virginia restrictions. At that point, he explained that at the time of his initial decision to let the Virginia ban stand, he understood Casey to be "a decision of super-stare decisis"—meaning super respect for precedent—"with respect to a woman's fundamental right to choose." But he also believed that the court would uphold the partial-birth abortion bans, or at least defer to Virginia's interpretation limiting the reach of its statute.
I'll see if I can track down the case they're discussing.
(8) Jon Sandor made the following comment | Jul 24, 2005 1:07:54 PM | Permalink
Richmond Medical Center v. Gilmore, 219 F.3d 376.
Thanks, Mr. Sandor. It is indeed Richmond Medical Center for Women v. Gilmore, 219 F.3d 376 (4th Cir. 1998). Unfortunately, because it's an order dissolving a stay that's accompanied by an opinion, rather than a full opinion on the merits, it appears not to be on Findlaw.com, but only available online through Westlaw or Nexis. So here it is in full (with some citational redundancy edited out; boldface mine):
I understand the Supreme Court to have intended its decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. See Casey, 505 U.S. at 844-46 ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113 (1973), that definition of liberty is still questioned.... After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, 530 U.S. 914 (2000) ("[T]his Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). We shall not revisit those legal principles.").
Although I so understand (and understood) the Court in Casey, I believed at the time that I voted to stay the district court's judgment pending appeal that, essentially for the reasons that were set forth by Justice Kennedy in dissent in Stenberg v. Carhart, the Supreme Court would ultimately hold that the Commonwealth's restrictions on partial-birth abortions did not constitute an undue burden on a woman's right to choose. At the very least, I believed that the Court would, given that the plaintiffs before us lodged only a facial challenge to the state's law, defer to what I regarded as the Commonwealth's reasonable interpretation of its statute as not extending to methods of abortion other than the partial-birth procedure. Based upon what I believed would be the Supreme Court's holding and likely reasoning on the constitutionality of the partial-birth ban, and the overlay of deference customarily afforded state statutes in facial challenges, I believed that the plaintiffs in the case before us lacked Article III standing to challenge the Commonwealth's statute because none of them even intended to perform the prohibited partial-birth procedure. For these reasons, I stayed the district court's original injunction as a single Circuit Judge and thereafter voted as a panel member of the court to deny the plaintiffs' motion to lift that stay.
While the district court's opinion and judgment were awaiting review by this court, the Supreme Court granted certiorari in Stenberg v. Carhart. We consequently postponed further consideration of this case pending final resolution of the partial-birth issue by the Court in Stenberg.
The Supreme Court has now held unequivocally that a statute worded like the Commonwealth's does not adequately distinguish between the so-called D & X procedure and the D & E procedure, the latter of which unquestionably may not be constitutionally banned by the government in the earlier stages of pregnancy. Moreover, the Court has also now unequivocally held that any ban on partial-birth abortion must include an exception for the health of the mother in order to be constitutional. The Commonwealth's statute likewise does not include such an exception for maternal health. Because, in my view, the Commonwealth's statute is not sustainable on either of the grounds on which the Court invalidated the Nebraska statute at issue in Stenberg v. Carhart--much less on both, which it must be--I vote to lift the stay of the district court's judgment entered by this court.
In addition to lifting the stay, I would also summarily affirm the judgment of the district court, not on the reasoning of that court, but on the reasoning and opinion of the Supreme Court in Stenberg v. Carhart. It is my judgment, after carefully reviewing the arguments advanced by the Commonwealth in opposition to Planned Parenthood's motion to lift our stay, that the Supreme Court's decision has not only foreclosed these arguments, but so clearly foreclosed them as to render further argument in this court unnecessary.
As a court of law, ours is neither to devise ways in which to circumvent the opinions of the Supreme Court nor to indulge delay in the full implementation of the Court's opinions. Rather, our responsibility is to follow faithfully its opinions, because that court is, by constitutional design, vested with the ultimate authority to interpret the Constitution.
In summarily affirming the unconstitutionality of the Commonwealth's partial-birth ban, I would also deny the plaintiffs' motion that I be recused from further consideration of this case. The plaintiffs have argued that they would be denied the due process of law were I to participate in the decision of the court as I do today, because I was included on today's panel under our court's local rules by virtue of having acted as a single Circuit Judge pursuant to Federal Rule of Appellate Procedure 8 on the Commonwealth's motion for stay of the district court's original injunction. In my view, in order to conclude that the plaintiffs' motion were well-taken, I and the court would be required to accept the view that law is but a product of the personal preferences of individual judges, and, consequently, that the law is dependent entirely upon which judge happens to be assigned to a given case. We would be required to reject the view that there actually is law independent of each of us, and that, as individual judges, we are bound, and bound equally, by that law.
I understand the argument advanced by the plaintiffs, and I even appreciate the reasons for the currency of this view. But it is not my view of law. Nor do I understand it to be the view of my colleagues on this court. And for the judiciary itself to publicly embrace such an ultimately cynical view of law and of the judicial process would represent our full succumber to the contemporary efforts by some to politicize not only the law, but the judiciary as well.
This is very, very interesting for a number of reasons, not least among them that Judge Luttig's name has also been floated as a possible future Supreme Court nominee. And maybe under slightly different wording, this was what Sen. Specter intended to refer to.
Even so, the language Judge Luttig quotes from Casey does not, I think, create some special new category of precedents that are "extra-tough to overrule"; nor do I think this short opinion by him does so. He's saying that while the stay was pending, the Supreme Court made it clear that it wasn't yet going to tinker with Roe, so his original prediction that there might be enough of a "probability of success on the merits" to justify granting a stay, changed during that interim.
So if anything, this is a case about how restrained the lower federal courts should be in predicting, even for purposes of maintaining the "status quo" pending further appeals, that the Supreme Court may reconsider its own prior precedents. Thus, I still really don't know what to make of Sen. Specter's reference; I can see how it would make a good jumping-off point for questioning of a nominee to a district or circuit court, but I honestly don't see how it might relate to anything a Supreme Court Justice might face.
(10) Jon Sandor made the following comment | Jul 24, 2005 1:49:51 PM | Permalink
Senate hearings have far more to do with politcs than with law, of course.
As illustrated by this historical note, via Powerline.
"The surprise is that until the 1950s nominees didn't usually testify. Hearings began not in the early Republic but in the battle over Jim Crow. In the 1950's, the Southern Democrats who controlled the Senate Judiciary Committee decided to require every nominee to appear in person in order to grill them about Brown v. Board of Education."
Arlen Specter - defender of Dredd and Plessey? Opponent of Brown?
I came here from my Bloglines account to post the Slate link with the Luttig quote, but I see Beldar already found it.
(12) Josh made the following comment | Jul 25, 2005 10:45:07 AM | Permalink
Note that Specter said "legal scholars" not "courts" or "judges." Perhaps it's a clumsy reference to Bruce Ackerman's theory of "Constitutional moments"?
(13) Ken Kenkel made the following comment | Jul 25, 2005 11:24:51 AM | Permalink
The term is used in law journals, with citations to William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & ECON. 249 (1976). Posner's idea was that a precedent may set such a clear legal standard that subsequent cases settle rather than go to trial and appeal. The articles I saw had to do with case citation analysis
i googled it.
google suggested it was misspelled, and that i might want to check SUPER PRESIDENT.
i think that THIS is what Specter meant: Bush is a SUPER PRESIDENT, and his nominees should be confirmed.
(15) Chris made the following comment | Jul 25, 2005 12:15:17 PM | Permalink
Apparently Senator Spector has fallen for this very clever trick.
I surmise this adjective was coined by those interested in protecting of the Court's most dubious opinions. The technique involves imbuing highly questionable rulings with an exaggerated sense of authority to distract challengers from their basic defects.
How else can one defend an opinion that relies on emanations and penumbras?
Perhaps Nancy Pelosi's seemingly ignorant reference to the deity in her reaction to the Kelo opinion was part of this strategy.
The more ridiculous the opinions become the more they will have to make up fictions like the "superprecedent", appeal to divine origin, and use foreign law to justify them.
(16) Abu El Banat made the following comment | Jul 25, 2005 2:35:27 PM | Permalink
I found the use of the concept of "superprecedents" in an article by Daniel Farber in the 2005 Minnesota Law Review (89 Minn. L. Rev. 848). It is used as a very technical term to describe cases that are so clear and accepted that their holdings are never subsequently challenged.
The issue seems to arise in academic research that attempts to study the frequency of citations as an indicator of the influence of various cases in jurisprudence. The concern is that "superprecedents" distort the studies in that they represent influential cases that are never cited because the legal principles they enunciate are simply accepted by all. As a result, no subsequent cases arise that require their citation.
Judge Luttig in Richmond Medical Center for Women v. Gilmore, 219 F3rd 376 (4th Cir., 2000) used the term "super-stare decisis." He suggested that Planned Parenthood v. Casey and Stenberg v. Carhart so clearly reaffirmed Roe v. Wade that it was raised to the level of "super-stare decisis." He quotes, "This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). We shall not revisit those legal principles."
Obviously, the Luttig use is far from that of "superprecedent" in the Law Review article. It is similar to that of Senator Specter. I could not find the use of the term "super-stare decisis" in other cases. Certainly, many considerations impact a determination by a court in overturning precedent, such as reliance on settled law by the society.
In my view, Roe v. Wade could not be considered "superprecedent" in the useage of the Law Review article. Cases continue to cite it as precedent as shown by Judge Luttig's opinion. It has not risen to the level of such acceptance that cases do not arise that either challenge or rely on it as precedent.
My reaction to Judge Luttig is that, with due respect, it seems a strange formulation. Precedent deserves repect and Supreme Court opinions above all, but suggesting that some cases, but not others, constitute "super-stare decisis" seems odd. Many Supreme Court cases cite prior Supreme Court opinions with approval. That does not confer "super-stare decisis" status on them. Lower courts should follow precedent where controlling whether Supreme Court cases constitute "simple-stare decisis" or "super-stare decisis."
Conversely, the Supreme Court should not be detered from reviewing Roe v. Wade and limiting or reversing it simply because it had been reaffirmed by subsequent cases. Of course, I am always willing to be educated by other views on the issue.
(17) GrudginglyAffirmed made the following comment | Jul 25, 2005 3:25:39 PM | Permalink
Funny Beldar, for a post about making things up, you just made something up. You say that Plessy was "oft reaffirmed" -- please give me a Supreme Court (the only court that could possibly reaffirm Plessy) case between 1896 and 1954 that "reaffirmed" it. . . . Still looking, don't bother. It doesn't exist. Funny that you should make something up when you are criticizing Specter for doing so.
(18) Novak made the following comment | Jul 25, 2005 3:26:48 PM | Permalink
Have you checked "super precedents" against a Scottish legal dictionary? Not sure whether our man Arlen is still grooving on the Glenfiddich-driven nonsense that gave us the "not-proven" vote in President Clinton's show trial. I've been trying for some time to locate the Scottish usage for "spare the jury the evidence," which always seemed to better explain goings on there.
(19) GrudginglyAffirmed made the following comment | Jul 25, 2005 3:32:32 PM | Permalink
And please don't cite cases that limit Plessy but don't overrule it, those don't count as they were part of hte march to Roe. Fact: Plessy was NEVER reaffirmed.
Grudgingly, if you limit the term to "cases in which the Supreme Court says 'we are re-affirming' in so many words," then you're probably right. I see no indication Sen. Specter had such a limitation in mind, but then again, it's awfully hard to tell what Sen. Specter had in mind. So I find myself a bit uncertain as to whether I've "made something up" when I've picked an example of the term "superprecedents" that I'd never seen used before. (Some other pundits since have, but I did not accuse Sen. Specter of making the term up, by the way; whether he did or not still seems to be an open question of sorts.)
It's also true that in Brown itself, Chief Justice Warren went to rather extraordinary lengths to pretend that the Supreme Court had never "re-examined" Plessy, so that it was only overruling one case instead of a string of cases. It's also fair to say that by the time of Brown, there had been hints ("the march") that the Court was willing to reconsider it; but the Supreme Court had cited Plessy many times, and it certainly had been left in place for many years; I guess we could argue Plessy's "dusty-vs.-virile" index by the time of Brown.
Simply re-including a case's name in a string cite, perhaps on some non-core holding, may not qualify for whatever Sen. Specter meant by "superprecedent." But some folks would consider a case to have been re-affirmed, at least in some sense, when its central holding has been implicated by the factual and legal setting, one side has asked for that holding to be overruled, and overruling would have been outcome-determinative, but the Court refused the opportunity to do so. Using that (I think fairly common) understanding of "re-affirmed," I can give you one from my own law school: Sweatt v. Painter, 339 U.S. 629 (1950), just four years before Brown. The late Jerre Williams, who taught me Con Law at UT, had also taught at the "negroes only" law school set up to be "separate but equal," and I remember him pointing out that based on faculty-student ratios, that school was arguably better than Texas Law School (from whom its faculty was drawn). (He readily agreed that in terms of physical facilities, reputation, and degree value, however, the schools were not comparable.) The Supreme Court could, and should, have overruled Plessy in Sweatt; doing so would indeed have been outcome-determinative; and the Court was expressly asked to do it. Sweatt was certainly one of the cases in the "march to Brown" (assuming that's what you meant instead of "march to Roe"), and the Court found a way a fairly disingenuous way, but a way to say it was distinguishing Plessy. But Sweatt did not purport, by its terms, to "limit" Plessy either.
The bottom line is that I don't know what Sen. Specter meant, and I'm not sure anyone else does either. But both the language (at least in this usage) and perhaps the concept appear to be novel.
(21) Mark made the following comment | Jul 25, 2005 6:58:57 PM | Permalink
I bet he was thinking of "Super-President", which was a Saturday morning cartoon in the 1960's. For a very short time.
It's pretty clear that what we need right now is a new legal term: "SUPER-DUPER-STARE-DECISIS." This means to stand by the decisions of the Constitutional Convention and the decisions of the framers of the Constitution, instead of standing by some judicial "superprecedents." So now all we have to do is find out if a nominee supports super-stare decisis, or instead supports super-duper-stare decisis.
(23) wayne made the following comment | Jul 31, 2005 12:04:07 PM | Permalink
Hope you review late hits on the comments page -- am I wrong in my recollection that Brown v Board explicitly did NOT overturn Plessy?
(24) wayne made the following comment | Jul 31, 2005 12:10:32 PM | Permalink
Sorry - guess I should have read other comments before posting the last one - I see the disengenuousness of the Warren Court has already been noted. I agree with your opinion of Spector, however, and think double secret stare decisis would be a bad policy choice for the Court to follow. I don't think the left should have the domestic equivalent of a Breznev Doctrine on the emanations of the penumbras of the Constitution.
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