From the WSJ Opinion Archives
HOT TOPIC
Stare Indecisis
Alito's hearings defined the new judicial mainstream.
Having failed to lay a glove on Samuel Alito this week on ethics, liberal opponents are now falling back on a hardy perennial to justify their votes against him: He lacks due regard for Supreme Court precedent, and in particular he might vote to overturn that holiest of liberal precedents, Roe v. Wade.
As long as they're raising the subject, we agree this is a good moment to consider just what everyone means by stare decisis (Latin for "to stand by decided matters"). In the liberal caricature of the phrase, it means there are two kinds of conservative Justices. There are the "real conservatives" who never vote to overturn liberal precedents. And there are the "radicals," such as Antonin Scalia, who are only too eager to overturn established law. Liberal Democrats profess to be scared to death that Judge Alito is the second sort.
But in the hearings this week, Judge Alito was hard to pin down because the idea of Supreme Court precedent is itself elastic. "The presumption is that the Court will follow its prior precedents," he said when Judiciary Chairman Arlen Specter asked him about Roe. "There needs to be a special justification for overruling a prior precedent."
Sounds good, but following precedent isn't a mindless, lemming-like matter. As Judge Alito noted, some rulings deserved to be overturned, such as Plessy v. Ferguson, which sanctioned the separate-but-equal doctrine in 1896 and was superseded by Brown v. Board of Education in 1954. Dred Scott was also deservedly overturned, though it took a Civil War to do it.
Certainly, liberals don't mind overturning precedents they don't like. In Lawrence v. Texas, the 2003 ruling that banned state sodomy laws, a 6-3 Supreme Court majority eagerly overturned Bowers v. Hardwick, a 5-4 decision from 1986 that had declared such laws to be the prerogative of the states.
And in Roper v. Simmons, last year's decision banning the death penalty for juveniles, the Court's liberal bloc (assisted by the protean Anthony Kennedy) was only too happy to overturn Stanford v. Kentucky, which was decided in 1989. In justifying this reversal, moreover, the Court put less reliance on American case law than on foreign legal precedent.
We were glad to see Judge Alito distance himself from this growing à la carte judicial practice. "I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution," he said in response to Senator Tom Coburn (R., Oklahoma) "I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world."
Meanwhile, Judge Alito may be willing to let some liberal precedents stand even though he once opposed them. A good example is the approach that the late Chief Justice, William Rehnquist, took to the 1966 Miranda warning to police that he once opposed as unconstitutional. In a 2000 ruling, he wrote that Miranda has since become "embedded in the routine police practices to a point where the warnings have become a part of our national culture."
Which brings us inevitably to abortion, and Judge Alito's refusal to go as far as Chief Justice John Roberts did during his confirmation hearings and call Roe "settled law." Liberals are making a big deal of this, as well as his refusal to endorse Senator Specter's concept of Roe as a "super-duper precedent." The judge said wryly that the latter sounded like a laundry detergent.
We haven't a clue whether Judge Alito would vote to overturn Roe, and we suspect he may not know either. His record on the Third Circuit Court of Appeals, where he ruled on several abortion cases and sometimes in ways that upheld abortion rights, shows he's not a results-oriented jurist. As he told New York Democrat Chuck Schumer, "If I have had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my Third Circuit cases." How he votes on abortion will almost certainly depend on the nature of the case before him, the arguments at issue, and perhaps how many other Justices might vote along with him.
What we're confident Judge Alito won't do is join the Court's liberal wing on cases such as Lawrence, and intrude willy-nilly into social matters best left to legislatures to solve. This is what really has liberals worried, since in her later years they could often count on Justice Sandra Day O'Connor to join them. With Judge Alito set to replace her, the High Court is likely to return to the centrist majority that prevailed before Byron White was replaced by Ruth Bader Ginsburg in 1993.
And by all accounts he will be confirmed. Senate liberals from the East and West coasts can't muster support for a filibuster, in part because their fellow Democrats from the heartland have no appetite for a rumble over judges and social policy. Their red state wipeout in 2002 and 2004 taught them that lesson.
The past year's Senate confirmation hearings may not have been uplifting, but they did teach us one thing. On matters of precedent and other judicial issues, the left no longer defines what is "in the mainstream." That privilege now belongs to Chief Justice Roberts and the soon-to-be-Justice Alito.
