Superprecedents

[Rick Duncan]

For me, the decisions overruling Roe & Casey & Lawrence would be  superprecedents, decisions putting to rest forever the tyranny of Substantive Due Process.
 
But, of course, superprecedents, like SDP fundamental liberties, lie in the eyes of the beholder.
 
Rick

Aaron RS Lorenz <lorenz at legal.umass.edu> wrote:
While I enjoyed the NY Times Rosen piece, I wonder if we might simply look to O'Connor's opinion in Casey to remind us of the Court's approach to this theory of superprecedents:

Overruling Roe's central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only 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 political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country's loss of confidence in the Judiciary would be underscored by condemnation for the Court's failure to ke!
 ep faith
 with those who support the decision at a cost to themselves. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law.

Aaron

Aaron R.S. Lorenz
University of Massachusetts, Amherst
Department of Legal Studies
lorenz at legal.umass.edu

 

----- Original Message ----- 
From: RJLipkin at aol.com 
To: SLevinson at law.utexas.edu ; conlawprof at lists.ucla.edu 
Sent: Sunday, October 30, 2005 9:16 AM
Subject: Re: Superprecedents


        I worry about the notion of a "superprecedent." If I understand this notion correctly, it would seem that the Slaughterhouse cases and the Civil Rights cases would clearly count as superprecents; yet several important scholars have recommended, plausibly in my view, overturning these cases.  More important, Plessy clearly qualifies as a superprecedent.  Thus, the idea of a superprecent puts Brown in jeopardy while at the same time rendering Brown unassailable.  Accordingly, I see enormous obtacles in rendering the notion of a superprecedent constitutionally legitimate, politically desirable, or conceptually coherent.
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware


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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

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