A Chequer-Board of Nights and Days

Evidently feeling that he has nothing better to do, Arlen Specter has now decided to review the confirmation testimony of Chief Justice Roberts and Justice Alito to see whether or not they lied about respecting precedent.

The story contains an excerpt concerning what Roberts and Alito said regarding precedent. It is as follows:

Roberts said there would be instances that called for a reconsideration of prior decisions. But, he added, "I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness."

Alito called stare decisis "a very important doctrine," although it was not an "inexorable command."

"I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis," Alito said. "And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent."

While a great deal of respect needs to be afforded to precedent, there is nothing that says that precedent is inviolable--as Justice Alito pointed out. Respect for precedent is not a set of chains that binds a judge or a Justice to a particular set of rulings. At the end of the day, the duty of the judge or Justice is to call cases as he/she sees them--much like an umpire, which, come to think of it, was the analogy Chief Justice Roberts drew in his confirmation hearings.

Out of curiosity, does Specter believe that judges and Justices ought to agree with precedent a particular percentage of the time? How often must they agree with precedent in order to satisfy him that they do indeed have a healthy sense of respect for precedent? If they deviate from that percentage, is it sufficient to prove that they actually lied about their respect for precedent?

Maybe it would be best to abandon this wasteful investigation. Maybe it would be best to simply judge each of the Supreme Court's decisions, dissents and concurrences on their individual merits and decide whether those decisions, dissents and concurrences are well-written and/or well-reasoned, instead of suggesting that some sort of stare decisis quota needs to be met in order to be comforted that a particular judge or Justice is doing his or her job properly.

Just a thought.