Supreme Court justices often speak in code.
It emerges during their public arguments, on matters small and large. Sometimes it’s in the mere short-handing of a case name: “Illinois Brick,” “Seminole Rock,” “Race Horse.” Or it’s a tossed off Latin phrase like “a fortiori.”
Then there’s another kind of code or language the justices use to telegraph their views on a case or broader principle. And this is the time of year, when the annual session is winding down, that the slightest signals of how the justices might rule in major cases are scrutinized. p
The consistent theme in the 2018-19 session now coming to a climax has been the value of precedent, or “stare decisis,” meaning adherence to past cases. That principle is intended to ensure stability in the law. And as Justice Stephen Breyer suggested in a dissenting opinion last month, it can make the difference in whether judicial landmarks, such as Roe v. Wade from 1973, stand or fall in the future.
The justices’ differing approaches to precedent are likely to emerge in several cases to be decided in the next week – including on partisan gerrymandering, the reach of federal regulatory power and whether the Trump administration can add a question about citizenship to the 2020 census. The larger debate will surely surface more in upcoming years as justices on this increasingly conservative court question past liberal precedents.
Chief Justice John Roberts suggested during a March oral argument that he considers precedent on a continuum.
“I think the issue depends at least in part on how much of a change you’re making,” he said. A precedent may have been limited by subsequent rulings over the years. “I just wonder exactly how much of a change at the end of the day you’re talking about,” he told a lawyer in the dispute, Kisor v. Wilkie, involving precedent that gives administrative agencies broad regulatory power.
Justice Elena Kagan, a liberal who may fear that more decisions from earlier eras will be tossed, has emphasized that the hurdles to reversing longstanding cases have been high: “Usually we look to something terrible that’s happening: This is unworkable. This is an anomaly in the doctrine. It no longer has any support in the surrounding legal landscape, something like that. This is so grievously wrong that we can’t stand to live with it anymore.”
What a justice “can’t stand to live with anymore” varies among the nine. Sometimes their views are clear, sometimes expressed cryptically. Here is a sample of what the justices talk about when they talk about precedent, along with other quirks of their oral arguments that led up to these last days of the annual session.
Chief Justice John Roberts
He believes some past decisions may have been be so weakened by subsequent rulings that they inevitably must fall. He has expressed this view since his 2005 Senate confirmation hearings, when he also said it can be a “jolt” to the country when precedent is reversed.
The significance of any chipping away at the bricks of precedent is in the eye of the beholder, of course.
Twice in the last two years, the five-justice conservative majority led by Roberts has struck down cases from the 1970s over protests from the four liberal justices. Kisor v. Wilkie, the case that drew Roberts’ comment about fading precedents, is one of the 12 pending disputes yet to be resolved. A decision reversing two cases related to federal regulatory power (the 1945 Bowles v. Seminole Rock & Sand and 1997 Auer v. Robbins) would diminish the power of administrative agencies.
A former appellate advocate who stood 39 times at the court lectern before becoming a judge, Roberts is a sharp questioner during the hour-long argument sessions. He also must act as a kind of traffic cop on this so-called “hot bench.” He tries to stop his loquacious colleagues from talking over each other, deferring to the more senior justice in a colloquy.
Roberts, 64, often reveals a sly sense of humor. In Smith v. Berryhill, heard in March, he said at one point of the petitioner who appealed the case from a lower court, “Mr. Smith is still a loser, right?” Amid laughter from spectators, Roberts added, “Well, you know, of course, he lost.”
Justice Clarence Thomas
The most senior associate justice but also the quietest, Thomas, 70, can go years without asking a question during oral arguments.
When he does pose a query, the conservative African-American justice often interjects in race-related disputes, as he did this term in a controversy over bias in jury selection. That case of Flowers v. Mississippi is among those to soon be decided. In his writings, Thomas has expressed the greatest willingness to reverse entrenched precedents.
On June 17, he wrote a concurring opinion in Gamble v. United States, joined by no other justice, rebuking the court for sometimes using stare decisis to perpetuate what he regarded as “demonstrably erroneous decisions.” Earlier this session, Thomas disputed the underpinnings of the landmark 1964 New York Times v. Sullivan, which makes it difficult for public figures to sue the news media for libel, and of the 1973 Roe v. Wade, which made abortion legal nationwide. He believes that neither decision was sufficiently grounded in the Constitution, writing in February of the First Amendment milestone:
“New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” he wrote.
On Friday, Thomas, again writing for himself in dissent, said he would discard an entire line of cases tracing to the 1986 Batson v. Kentucky case, prohibiting race discrimination in jury selection. He deemed it “a misguided effort to remedy a general societal wrong by using the Constitution to regulate” prosecutors’ discretionary challenges to prospective jurors.
Justice Ruth Bader Ginsburg
The senior justice on the left routinely highlights the value of precedent and tends to emphasize that lower court judges rely on Supreme Court cases.
“Let’s say your argument is accepted and Auer [v. Robbins] is overruled,” she asked in Kisor v. Wilkie. “There may have been a dozen or so cases, Auer cases in this Court, but there are probably hundreds in the lower courts. … What happens to all of those cases where there was reliance on Auer in the lower courts?”
The 86-year-old Ginsburg has often asserted that the conservative majority is undermining rules of past cases. But the three-time cancer survivor and longest serving female justice (going on 26 years) was ready in Monday’s case of Gamble v. United States to reverse precedent rooted in more than a century of law.
She dissented when the majority declined to abolish the longstanding “dual sovereign” doctrine as it relates to the Constitution’s double-jeopardy clause. The double-jeopardy clause usually protects people from people from being tried twice for the same crime, but the court has allowed individual states and the federal government to try people for the same misconduct based on their separate interests in vindication.
“The separate-sovereigns doctrine, I acknowledge, has been embraced repeatedly by the Court,” she wrote, but then added of the dispute over whether a person can be imprisoned twice for the same crime: “Our adherence to precedent is weakest in cases concerning procedural rules that implicate fundamental constitutional protections.”
The former women’s rights lawyer asks precise questions during arguments, and when she poses a query about some hypothetical petitioner, she eschews the standard “he” pronoun and uses “she.”
Justice Stephen Breyer
His recent dissenting opinion in Franchise Tax Board of California v. Hyatt, protesting the majority’s reversal of the 1979 Nevada v. Hall, may foreshadow upcoming battles over court precedent. “The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it,” Breyer wrote in the May case.
“Today’s decision can only cause one to wonder which cases the Court will overrule next,” he added.
During arguments in other cases, Breyer, 80, has reinforced this concern but also observed that sometimes the court must retreat on precedent. “You can’t say never,” he said to a lawyer at the lectern in December. “If it always holds, we wouldn’t have Brown versus Board [of Education]. But, if it never holds, we’re really in trouble in terms of the stability of the law. Okay? Wonderful. This has occurred to you, this problem. And do you have anything to say that will help me decide this kind of balance?”
Breyer’s questions sometimes wander, and he has a self-deprecating approach: “Imagine I’m your client,” he said during a January case. “Forget I’m a judge. That’s not too difficult.”
Justice Samuel Alito
He wrote last June’s important decision, Janus v. American Federation of State, County, and Municipal Employees, Council 31, that reversed a 1977 labor-union precedent. He asserted that the earlier case “was poorly reasoned” and “is inconsistent with other First Amendment cases and has been undermined by more recent decisions.”
Still, Alito has expressed concerns about the domino consequences of discarding a decades-old case and he authored Monday’s case preserving the “dual sovereignty doctrine” related to double-jeopardy questions.
During arguments in Kisor v. Wilkie, yet to be decided, he said, “Should we be concerned about the effect that either overruling Auer and Seminole Rock … will have on cases in which courts have interpreted regulations based on those principles and now, whichever course we take, those will be thrown into doubt?” Overall in arguments, Alito, 69, often poses layered hypothetical scenarios that can expose the vulnerabilities in an advocate’s position.
Justice Sonia Sotomayor
When some of her colleagues spoke of going back decades for precedent in a recent case, she tried to top them by saying, “I go back to cases in the early 1800s.”
Like her fellow liberals, she has been expressing concerns about stability in the law. During arguments over a mammoth World War I memorial cross on public land in Bladensburg, Maryland, she was skeptical about discarding longstanding precedent on the separation of church and state that several justices have criticized. When a Justice Department lawyer said the cross “falls within our nation’s long tradition of accommodating religious speech or symbols in civic life,” Sotomayor, 64, responded of the cross on government property: “We don’t have a long tradition of that. It’s sectarian. We have a lot of founding fathers, including George Washington, who was exceedingly careful to ensure that references to God were as neutral as possible to as many religions as possible.”
A ruling over that memorial “Peace Cross” was issued on Thursday, and Sotomayor and Ginsburg were the lone dissenters as the justices ruled it could remain on public property. Sotomayor seems to be the justice who most tests Roberts as he oversees arguments and tries to ensure that the lawyers at the lectern have a few final uninterrupted minutes for rebuttal.
Justice Elena Kagan
She has tried to underscore the importance of preserving past cases and counter the current majority’s interest in reversing certain precedents.
“We take it super-seriously … I mean, we used to – and we need a good reason for it,” she said in a March dispute testing the fate of past cases involving administrative agencies. In an earlier case, in December, Kagan, 59, said, “You know, part of what stare decisis is, is a kind of doctrine of humility where we say we are really uncomfortable throwing over 170-year-old rules that 30 justices have approved just because we think we can kind of do it better.”
Kagan is among the most strategic questioners, listening as the positions of her colleagues emerge through the Q-and-A and then rebutting certain points to make her case.
On Friday when Roberts and the four other conservatives threw out a 1985 precedent, Kagan took a page from Breyer’s foreboding dissent in the California tax dispute. She observed that Breyer had said the majority decision in May “can only cause one to wonder which cases the Court will overrule next.” Kagan wrote: “Well, that didn’t take long.” Then, with less than a week remaining for the remaining decisions, she concluded: “Now one may wonder yet again.”
Justice Neil Gorsuch
He is among those appearing readiest to challenge past decisions, expressing his views in a colloquial style, as when earlier session he declared a lawyer was, “slicing the baloney a little too thinly,” and at another point implored, “let’s just spot me that.”
Gorsuch, 51, believes some cases simply have not stood the test of time.
“We haven’t overruled it, but we really have,” he said of a precedent in a tax case from North Carolina. In the dispute over the huge cross on public land, Gorsuch questioned any reliance on a 1971 precedent for the separation of church and state, Lemon v. Kurtzman. “It’s been a long time since this Court has applied Lemon, but yet the courts of appeals continue to cite it and use it. … And it has resulted in a welter of confusion … . Is it time for this Court to thank Lemon for its services and send it on its way?” (The court majority did not use the so-called Lemon test in its ruling Thursday in American Legion v. American Humanist Association.)
He also expressed skepticism for Justice Department arguments regarding reliance on the 1997 Auer v. Robbins, involving administrative agency power. “Every private party before us says their interests in stability would be better served by eliminating this rule altogether,” Gorsuch said.
Justice Brett Kavanaugh
The newest justice has expressed a high bar for reversal of precedent: “The bar that you have to clear … is not just to show that [a past case] is wrong but to show that it’s grievously wrong, egregiously wrong, something meeting a very high bar because stare decisis is itself a constitutional principle.”
He has added, “[S]tare decisis is a principle, in my view, rooted in Article III, as Federalist 78 points out, and as Justice Kagan points out. It’s a doctrine of stability and humility that we take very seriously.”
Still, Kavanaugh, 54, is among the justices who seem poised to reverse, or at least chip away at, decisions allowing broad federal regulatory authority. Kavanaugh recently signed on with Roberts and the three other conservative justices to reverse the 1979 Nevada v. Hall and to stress that “stare decisis is not an inexorable command.”
As the junior justice, Kavanaugh typically waits until his colleagues have had a chance to ask questions before firing questions at the lawyer at the lectern. He also makes it a practice to try to question both sides, even to play devil’s advocate.
UPDATE: This story has been updated with more developments from Friday’s court activity.