On voting against Alito after voting for Roberts -- and that phrase "inexorable command."

Todd Zywicki asks how any Senator who voted for Roberts can vote against Alito and still claim to be principled. That question ought to send us to the transcript of Russ Feingold's remarks yesterday:

The Supreme Court, alone among our courts, has the power to revisit and reverse its precedents, and so I believe that anyone who sits on that Court must not have a pre-set agenda to reverse precedents with which he or she disagrees and must recognize and appreciate the awesome power and responsibility of the Court to do justice when other branches of government infringe on or ignore the freedoms and rights of all citizens.

This is not a new standard Mr. Chairman. It is the same standard I applied to the nomination of Chief Justice Roberts. In that case, after careful consideration, I decided to vote in favor of the nomination. In the case of Judge Samuel Alito, after the same careful consideration, I must vote no....

Although he has not decided cases dealing with the Bill of Rights in wartime, he has a very long record on the bench of ruling in favor of the government and against individuals in a variety of contexts. Indeed, Mr. Chairman, this is an important distinction between Judge Alito and Chief Justice Roberts. Our new Chief Justice had a very limited judicial record before his nomination. Judge Alito has an extensive record. There is no better evidence of what kind of Justice he will be on the Supreme Court than his record as a Court of Appeals judge. He told us that himself....

One important question that I had about Judge Alito was his view on the role of precedent and stare decisis in our legal system. At his hearing, while restating the doctrine of stare decisis, Judge Alito repeatedly qualified his answers with the comment that stare decisis is not an “inexorable command.” While this is most certainly true, his insistence on qualifying his answers with this formulation was troubling. Combined with a judicial record in which fellow judges have criticized his application of precedent in several cases, Judge Alito’s record and testimony do not give me the same comfort I had with Chief Justice Roberts that he has the respect for and deference to precedent that I would like to see in a Supreme Court Justice.

To take Feingold at his words but to put it bluntly, he detected a right wing agenda in Alito that he could not detect in Roberts.

I note that John Roberts also used the phrase "inexorable command":

SEN. GRASSLEY: Could you tell us what you believe is the appropriate judicial role describing for us the value of precedent in our legal system?

JUDGE ROBERTS: Certainly. And here again, we're guided by the court. It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't. And of course some of the cases say you should in a particular instance, and others that you shouldn't.

You begin with a basis recognition of the value of precedent. No judge gets up every morning with a clean slate and says, "Well, what should the Constitution look like today?" The approach is a more modest one, to begin with the precedents. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.

Those precedents become part of the rule of law that the judge must apply.

At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.

If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, "Because of these three precedents, we reach this result," and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent.

Oh, but Alito said it repeatedly. On January 10th, responding to Senator Specter:

SPECTER: How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an inexorable command, but it is a general presumption that courts are going to follow prior precedents....

ALITO: I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. And when the Supreme Court says that we are not going...

SPECTER: How about being reaffirmed 38 times?

ALITO: Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis.

And when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.

Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not. But it is a judgment that has to be based -- taking into account all the factors that are relevant and that are set out in the Supreme Court's cases.

Also on that day, responding to Senator Feinstein:

SEN. FEINSTEIN: But I'm asking you for the -- what it would, the special justification that you mentioned this morning, that would be needed to overcome precedence and reliance.

JUDGE ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant. This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not. The Supreme Court has said that this is a question that calls for the exercise of judgment, and they've said there has to be a special justification for overruling a precedent. There is a presumption that precedents will be followed. But it is not -- the rule of stare decisis is not an inexorable command, and I don't think anybody would want a rule in the area of constitutional law that pointed in -- that said that a constitutional decision, once handed down, can never be overruled. So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all the relevant --

On January 11th, again responding to Senator Feinstein, pushing him to use the expression (but mangling it) and interrupting him, thus causing him to repeat it:

SEN. DIANNE FEINSTEIN (D-CA): I want to try one more time. ... [W]hat concerns me -- and obviously this is on Roe -- is that despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that precedent is not "an exorable command." And those are the words that justice Rehnquist used arguing for the overturning of Roe.

So my question is, did you mean it that way?

JUDGE ALITO: The statement that precedent is not an inexorable (sic) command is a statement that has been in the Supreme Court case law for a long period of time. And I -- sitting here, I can't remember what the origin of it is, but I would bet that it's been -- it certainly has been used in cases in which the court has invoked the doctrine of stare decisis and refused to go ahead and overrule --

SEN. FEINSTEIN: I always believe everything I read in The Washington Post. (Laughter.)

JUDGE ALITO: Well, that is an important principle, and I --

SEN. FEINSTEIN: (Laughs.) I don't know about that one, but --

JUDGE ALITO: -- not the principle of believing everything in The Washington Post -- (laughter) -- but the principle that stare decisis is not an inexorable command, because then we would be stuck with decisions like Plessy, and they couldn't be overruled, except through a constitutional amendment.

But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion in the -- not going to reach a conclusion until they have gone through the judicial process. And it's not a facade. It's a -- it's not a meaningless exercise.

On January 12th, responding to Senator Biden:

JUDGE ALITO: Different justices and different judges have different views about stare decisis. But my view is that you need a special justification for overruling a prior precedent, and that reliance and reaffirmation are among the factors that are important. But I've also said it's not an inexorable command. In the area of constitutional law, there has to be the ability to revisit a case like Plessy versus Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.

You begin with the basic recognition of the value of precedent. No judge gets up every morning with a clean slate and says, well, what should the Constitution look like today? The approach is a more modest one. You begin with the precedent. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in the legal system.

Those precedents become part of the rule of law that the judge must apply. At the same time, as the court pointed out in the Casey case, the stare decisis is not an inexorable command. If particular precedents have proven to be unworkable, they don't lead to predictable results; they're difficult to apply; that's one factor supporting reconsideration.

If the bases of the precedents have been eroded, in other words, if the court decides a case, say, because of these three precedents we've reached this result, and in the intervening years, two of those are overruled, that's another basis for reconsidering the precedent.

At the same time you always have to take into account the settled expectations that have grown up around the prior precedent. It is a jolt to the legal system to overrule a precedent, and that has to be taken into account, as well as the different expectations that have grown up around it.

There are different other aspects of the rules. For example, property decisions are far less likely to be reconsidered because of the expectations that grow up around them. Statutory decisions are less likely to be reconsidered because Congress can fix it if it's a mistake.

It's, again, the court's decisions in cases like Casey and Dickerson, Paine versus Tennessee and Agostini, State Oil Company versus Khan. It's an issue that comes up on a regular basis, and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.

The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations.

That's seven times, compared to Roberts' one, but Alito was pushed on the question of stare decisis repeatedly and the phrase was part of his stock response. What was there in that response or the way he had occasion to repeat it that was "troubling" to Senator Feingold? Roberts presented the same formulation for stare decisis, relying on Supreme Court case law and taking the phrase straight out of Lawrence v. Texas, where the Court in fact overruled a precedent (to find a more expansive privacy right).