319 KO Court DA Updates

8/14/2019 319 KO Court DA Updates

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Stare Decisis Key to Legitimacy

Stare Decisis key to public perception and legitimacyDaniel Katz, Professor, University of Oregon, No Date Cited

The Supreme Court, as well as the judicial system as a whole suffers from a continuing question of legitimacy. The

potential for illegitimacy is linked to the tripartite American constitutional system. The judicial branch simply lacks thepower of the sword that the executive branch enjoys under its command of the armed forces, and the power of the purse that

Congress is granted with its right to tax and spend revenue. Henceforth, judicial legitimacy is only derived from the power

of the pen and the publics faith in the righteousness of its outcomes. This faith is maintained primarily through the publics

perception of an apolitical judicial branch. Therefore, the Court may act as a political body and set forth a given agenda butmust be ever-mindful of its countermajoritarian limitations. The new post-partisan model develops as one of moderation

and adherence to concepts such as stare decisis as the Court faces judicial nullification and undermining in its continuing

quest for legitimacy.

Breaking stare decisis subverts legitimacy

Bruce Shaprio, Executive Director of the Dart Center for Journalism and Trauma, 1-11-06, The Nation,

http://www.thenation.com/doc/20060123/shapiro2

Specter tried another friendly angle with Planned Parenthood v. Casey: What did Alito think of the argument by Justices

O'Connor, Kennedy and Souter that overturning Roe would "subvert the Court's legitimacy" because of evolving social

consensus in favor of women's control of reproduction? Alito: "The Supreme Court, my court, all federal courts, should beinsulated from public opinion." Over aund over through the day, Alito leaned on the importance of precedent in evaluating

any case--with respect for precedent on the surrogate issues for Roe. Yet when it comes to respect for precedent, Alito

suffers from a profound credibility gap--a point ignored until Senator Chuck Schumer took over questioning Alito late in the

day. As Schumer pointed out, Alito has routinely been charged by colleagues on the bench with ignoring precedent.

Schumer read off the condemnations of Alito's findings from other Third Circuit judges: "contrary to our precedent";

"ignores our precedent"; "ignored case after case." Schumer came close to making it personal when he quoted Judge David

Garth, for whom Alito had clerked, calling one of Alito'su opinions "unprecedented in its disregard for the principles of stare

decisis."

Overruling laws stifles legitimacy

AP, Associated Press5-20-07, USA Today, http://www.usatoday.com/news/washington/2007-05-20-

scotus-oconnor_N.htm

WASHINGTON (AP) Retired Justice Sandra Day O'Connor says the Supreme Court should generally follow its prior

rulings so the public has confidence that laws do not change just because justices come and go. O'Connor, a swing vote in

favor of abortion rights and affirmative action, said she was seeing an unprecedented level of public criticism in recent

months of state and federal court decisions. The vast majority of the criticism, she said, is unjustified and borders on

harassment of judges, especially in cases where lawmakers threaten impeachment of judges for decisions they disagreed

with. But federal courts, too, play a role in fostering public credibility by generally adhering to "stare decisis," or settled

precedent, O'Connor said. "Obviously, that is a concern," said the Reagan appointee who retired early last year. Sheresponded to a question in a broadcast interview about the public's perception that the Supreme Court based its decisionsmore on politics than principle and whether that belief undermined the court's credibility.
http://www.thenation.com/doc/20060123/shapiro2http://www.usatoday.com/news/washington/2007-05-20-scotus-oconnor_N.htmhttp://www.usatoday.com/news/washington/2007-05-20-scotus-oconnor_N.htmhttp://www.thenation.com/doc/20060123/shapiro2http://www.usatoday.com/news/washington/2007-05-20-scotus-oconnor_N.htmhttp://www.usatoday.com/news/washington/2007-05-20-scotus-oconnor_N.htm


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Overruling can drastically subvert court legitimacy

James F. Spriggs, Professor of Political Science, University of California- Davis, Apr. 23-25 1998,

Journal of Politics

In addition to acting on their policy preferences, justices on the Court respond to

constraints imposed by formal or informal rules. The Court, first ofall, can not realisticallyoverrule all prior decisions with which it disagrees. To do so could quite possibly undermine the

Courts authority and legitimacy and thus reduce the impact of its opinions (see Gibson, Caldeira,

and Baird 1998; Knight and Epstein1996; Mondak 1994). The Court mayalso feel bound to

follow precedent so that its decisions are respected by future Courts (Rasmusen 1994). By

changing law incrementally and, at some level heeding precedent, the Court maximizes the

probability of its opinions having greater impact. In this sense, stare decisismay constitute a

self-enforcing norm resultingfrom the justicesdesire to write efficacious legal doctrine. In sum,

the overuse of the power to overrule precedent can erode the legitimacy of the Court andundermine the impact of its opinions. For this reason, we argue that justices abide by aset of

informal norms regarding the limited appropriatecontext for the overruling of precedent.

Stare Decisis keeps court legitimacy in line

James F. Spriggs, Professor of Political Science, University of California- Davis, Apr. 23-25 1998,

Journal of Politics

Second, the norm of stare decisis, as operating through prior legal treatment, influences the Court. A precedent is at greater

risk of being overruled if the Court previously interpreted it in a negative manner. In addition, particular characteristics ofprecedents affect the overruling of precedent by helping structure how justices subsequently interpret and implement

opinions. Thus, the greater the consensus and clarity of a precedent, as seen in its voting and opinion coalitions, the less

likely it will be overruled. The Court, however, appears not to respond to any potential separation-of-powers constraint.


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Short-Term Overrules hurt Legitimacy

Mind-shift overrules hurt legitimacy

CRS, Congressional Research Service, 11-29-05

[W]hen the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable

efforts to overturn it and to thwart its implementation. . . . [O]nly the most convincing justification under accepted standards

of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to politicalpressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to

overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the

Courts legitimacy beyond any serious question.

Quick changes hurt public perception and court legitimacy

Anthony Lewis, Former Columnist, New York Times, Two Time winner of Pulitzer Prize, 12-20-07,

The New York Review of Books, http://www.nybooks.com/articles/20899

At the end of his first Supreme Court term, in July 2006, Chief Justice John Roberts was interviewed by Jeffrey Rosen for a

book on the Court. Roberts emphasized the aim of having the justices subordinate their individual preferences to an effort to

achieve unanimity. "I think it's bad, long-term," he said, if people identify the rule of law with how individual justicesvote.... You do have to put [the justices] in a situation where they will appreciate, from their own point of view, having the

Court acquire more legitimacy, credibility, that they will benefit from the shared commitment to unanimity.... People don't

hwant the Court to seem to be lurching around because of changes in personnel.

Quick overrules makes the court look political- hurting legitimacy- lawrence proves



Or consider the 2003 decision, in Lawrence v. Texas, that states could not punish private homosexual activity as a crime. In

1986 the Court had decided the other way in a case from Georgia. Seventeen years later attitudes had changed, on the Court

and in the country. Six justices, Toobin puts it, "believed that the time had come to recognize that it was an abomination to

allow criminal punishment of consensual homosexual sex." What was different about the overrulings of previous decisions

during the last Supreme Court term was their number, and the fact that they so quickly and obviously reflected the changes

in the Court's membership. It made the Court seem to be doing exactly what Chief Justice Roberts had warned against in his

2006 interview: "lurching around because of changes in personnel." To put it another way, it made the nine look like

politicians.
http://www.nybooks.com/articles/20899http://www.nybooks.com/articles/20899


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Legitimacy Now

Roberts holding the line on legitimacy now

Time, 10-2-06, CNN, http://www.time.com/time/magazine/article/0,9171,1541296,00.html

During Chief Justice Roberts' honeymoon term, about half the court's decisions were unanimous--nearly double the typical

tally in recent years. This term, big cases on divisive social issues mean Roberts is likely to struggle to build such

consensus. Still, he'll try in order to boost the court's "stature and legit imacy," he said in July. When the court can chooseeither a narrow but unanimous ruling or a sweeping, landmark decision by a 5-4 vote, he said, "I think it's better to decide

on the former ground, and let it go at that."

Roberts is hard on legitimacy

NYT,New York Times, 9-18- 05,

http://www.nytimes.com/2005/09/18/politics/politicsspecial1/18confirm.html?pagewanted=all

"Considerations of the court's legit imacy," he said, "are terribly important." That alluded to the joint opinion in Caseysigned by Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter. To overrule Roe "under fire in the

absence of the most compelling reason to re-examine a watershed decision," the three justices wrote, "would subvert the

court's legit imacy beyond any serious question." But Judge Roberts went on to say widespread disagreement with a decision

can also undermine the court's legit imacy and may indeed be a ground for reconsidering a decision. "So it's a factor that is

played different ways in different precedents of the court," he said. "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."

Confidence in the court high now

Ryan Blitstein, Staff Writer, MillerMcCune, 4-18-08,http://www.miller-mccune.com/article/310

Nevertheless, public confidence and approval of the court remains extremely high, often hovering in the 60 percent range,

as much as double that of the president or Congress. It ranks among the most well-regarded high courts in the world, as

measured by citizen opinion.

Legitimacy on the brink

Brookings Institute, 6-25-07,http://www.brookings.edu/opinions/2007/0625governance_wittes.aspx

In the wake ofBush v. Gore, it became something of a vogue among liberal law professors to declare

that the Supreme Court had lost its legitimacy. I objected. "That claim is subject to empirical testing.

And the tests prove it false--that is, if legitimacy is regarded as a function of public opinion," I wrote,

together with Peter Berkowitz. Citing this very Gallup trend line and other data, we concluded, "TheCourt has enjoyed a remarkably stable level of public confidence and trust over a long period of time"--

one that the election controversy had not disrupted. Now, however, the very effect that did not exist

then is manifesting itself significantly. With approval of the Court still high, it's too early to say that theCourt's public standing is in trouble. But it's not too early to wonder if its Teflon may be starting to

wear thin.
http://www.nytimes.com/2005/09/18/politics/politicsspecial1/18confirm.html?pagewanted=allhttp://www.miller-mccune.com/article/310http://www.brookings.edu/opinions/2007/0625governance_wittes.aspxhttp://www.brookings.edu/opinions/2007/0625governance_wittes.aspxhttp://www.nytimes.com/2005/09/18/politics/politicsspecial1/18confirm.html?pagewanted=allhttp://www.miller-mccune.com/article/310http://www.brookings.edu/opinions/2007/0625governance_wittes.aspx


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Roberts is strict on court credibility now



The nagging question is the position of Chief Justice Roberts. He is presiding over a Court whose sudden and radical

changes have made the public focus on the ways in which individual justices votewhich in his 2006 interview he deplored

and put in question the legitimacy and credibility that he said he wanted to gain by more unanimity. cWas he serious inthose 2006 comments on the benefits of a "shared commitment to unanimity?" Did he mean them? Were commentators who

took his statements at face value unduly credulous? The test of the pudding is in the eating. In case after case since then hemight have brought the justices together, and did not. So the effort at unanimity cannot be a high priority for him. Judging

by what he has done on the Court, John Roberts is a committed legal conservative: not an originalist like Scalia or Thomas

but someone determined to read the law and the Constitution to achieve conservative ends. But why would he be in such a

hurry? One possible answer is that, given the makeup of the Court, he sees an opening right now to move the law toward

what the conservative movement wants, in matters like abortion and affirmative action, and you never know whether that

opening will last.
http://www.nybooks.com/articles/20899http://www.nybooks.com/articles/20899


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No Legitimacy Now

Legitimacy low now- polls show

Brookings Institute, 6-25-07,http://www.brookings.edu/opinions/2007/0625governance_wittes.aspx

When Gallup's pollsters ask a slightly different question, they get a dramatically different figure.

Gallup this month released polling data on public confidence in American institutions, including the

Supreme Court. Only 34 percent of those surveyed reported having "a great deal" or "quite a lot" ofconfidence in the court. This figure is the lowest since Gallup started tracking this particular metric

back in 1973. The Court's confidence rating has only once before dipped below 40 percent. Yet in the

past few years, confidence in the Court has been in steep decline. If you take these numbers seriously,

the Court has an incipient legitimacy crisis on its hands.
http://www.brookings.edu/opinions/2007/0625governance_wittes.aspxhttp://www.brookings.edu/opinions/2007/0625governance_wittes.aspxhttp://www.brookings.edu/opinions/2007/0625governance_wittes.aspx

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