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Stare Decisis and Judicial Restraint

1991; Wiley; Volume: 16; Issue: 1 Linguagem: Inglês

10.1353/sch.1991.0004

1540-5818

Lewis F. Powell,

Law, Rights, and Freedoms

Stare Decisis and Judicial Restraint Lewis F. Powell, Jr. Editor’s Note: This essay was originally deliv­ eredas theLeslieH.ArpsLecture, to TheAsso­ ciation of the Bar of the City of New York, on October 17, 1989. It was published in the July 1990issueoftheNew YorkStateBarJournaland is reprinted withpermission. ThebeginningofOctoberTerm 1989 marks an appropriate occasion to address again the subject ofstare decisis. At the close ofthe 1988 Term, commentators who agreed on little else unanimously proclaimed a “shift in direction” on the Court. Theydescribed the 1988 Term as a watershed and predicted reexamination of numerous areas ofthe law “previously thought to be settled.” You will not be surprised to learn that I take these pronouncements, like many that have preceded them in past years, with a grain ofsalt. In the era of “sound bites” and instant opinion polls, it is dangerous to apply broad labels to a single Term of the Court. I emphasize at the outset thatinintellect and experience this is a strong Court. The pastTerm presented an arrayofunusu­ allydifficultcases. This inturnresultednot only in five to four decisionsbut in splintered rulings without majority opinions. Unhappily, some opinions—on both sides of issues—included language that in time the authors may regret. I was concerned about the tone of some dissents when I was nominated for the Court in 1971. But I was reassured when it became evident that what one Justice may say about another’s opinion rarely should be viewed as personal criticism. I considered each ofthe Justiceswith whom I was privileged to serve as a personal friend, as well as a lawyer whose qualifications to serve on the high Court I never questioned. Justice Kennedy also has high qualifications. A. Stare Decisis in the 1988 Term Any talk of change at the Supreme Court prompts consideration ofstare decisis. Several of the Court’s opinions in the past Term have contained explicit discussions of stare decisis, both in statutory and constitutional cases. Perhapsthemostsignificant ofthe statutory cases is Patterson v. McLean Credit Union,1 in which the Court reconsidered the decision in Runyon v. McCrary2 that applied42 U.S.C. sec. 1981 to private contracts. The majorityopinion didnot holdthatRunyon was correctlydecided. But the Courtunanimouslyagreedthat, regard­ less of its initial correctness, Runyon should be reaffirmed on stare decisis grounds.3 Justice Kennedy’sCourt opinion reviewed anumber of the Court’s past opinions and stated that ‘“the doctrine of stare decisis is of fundamental im­ portance to the rule of law.’”4 A constitutional case involving stare decisis was South Carolina v. Gathers.5 In Gathers the Court was urged to reconsider Booth v. Maryland,6 an opinion I wrotefortheCourtinmylastTerm. Booth held that the EighthAmendment limits comment in capital sentencing proceedings on attributes of a murder victim and his family that were unre­ lated to the commission of a crime. Justice White, who had dissentedin theBooth case, de­ clined to overrule it. He joined Justice Bren­ nan’s opinionforthe Court inGathers. Thefour dissenters in Gathers explicitly called for overrulingBooth. Justice Scalia discussedstare decisis at length. While he acknowledged “some reservation concerning decisions that have become so embedded iribhr system of govern­ ment that return is no longer possible,” he argued that a Justice must be free to vote to overrule decisions that he or she feels are not 14 JOURNAL 1991 supportedbytheConstitutionitself, asopposed to prior precedents.7 Of course, a new Justice is less bound by precedent in construing a provision of the Constitution than a Justice who was sitting when a precedent was decided. The Court’s decision in Websterv. ReproductiveHealth Serv­ ices,8perhaps more controversial than the “flag burning” case,9 prorides an illustration. Justice Scalia and Justice Kennedy declined to follow Roe v. Wadew in that case. Justice Scalia would have overruled Roe explicitly. Justice Kennedy joined the Chief Justice and Justice White in limiting Roe. The end result was a badly fractured Court withfiveseparate opinions. AsIjoinedRoc and wrotethe Court opinion inAkron CenterforRe­ productiveHealth, Inc.,11 there is no secret as to how I would have voted in Webster. I do not say this as a criticism of the Court. In its long history, the presence on the Court of even a single new member often brings change. B. Current...