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LEGAL THEORY

ON STARE DECISIS AND JUDICIAL RESTRAINT

Lewis F. Powell Jr. (1990). ‘Stare Decisis and Judicial Restraint,’ Washington and Lee Review, Vol. 47, No. 2, pp. 281-290.

These notes on legal theory will summarize the main points raised by Justice Lewis F. Powell Jr. of the U.S. Supreme Court in the Leslie H. Arps lecture that he delivered before the New York Bar Association on October 17, 1989.

The lecture was subsequently published in 1990 in the Washington and Lee Review.

Justice Powell’s goal in this lecture is to explain the relationship between the doctrine of stare decisis and the function of ‘judicial restraint.’

As a prelude to doing so, Justice Powell analyses the Supreme Court’s performance in the year 1988-89 with a specific focus on whether or not the Court decided cases that overruled its precedents before moving on to what was really at stake in this lecture – the ‘current health’ of stare decisis as a judicial doctrine.

Justice Powell’s comments on stare decisis are important because he was involved in a number of landmark decisions of the U.S. Supreme Court after his appointment to the bench in 1971.

An interesting technique to unpack a Justice’s judicial philosophy is to ask him to explain his attitude or approach to precedents while deciding cases or granting cert (i.e. to stare decisis).

When he does so, the audience is bound to get an embryonic version of how he thinks about decision making on the bench.

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That is why Justice Lewis Powell’s comments on stare decisis remain relevant even though there is no dearth of scholarly articles and essays on this topic in law school reviews and journals in the United States.

Justice Powell points out that both the Warren and Burger Courts in which he served overruled approximately sixty cases each of the thousands that came up before them for cert and the hundreds that must have come up for a decision.

Justice Powell is less preoccupied with the precise numbers (since it depends on how you count the relationship between a decision in the present and a precedent), but with the fact that there was a continuity of concerns between these Courts.

The total number of cases that overturned precedents was actually quite small in number even though the Warren Court was supposed to have been ‘activist’ in its approach to adjudication, and the Burger Court a lot less ‘counter-revolutionary’ than it was expected to be by law school faculty and the media.

In other words, Justice Powell argues that it is not enough to consider the sheer number of cases to decide if a given bench was activist or exercised a sense of restraint.

It is more important to look at the scope and importance of the cases that came up for decision, and the impact that these cases made in terms of raising public awareness and interest in the proceedings of the Supreme Court.

What really matters, to put it directly, is whether the public at large understand why certain precedents were overruled and why the rest were not.

Justice Powell mentions some of the important cases which overruled Supreme Court precedents; they include Brown v Board of Education (1954), Baker v Carr (1962), Brandenburg v Ohio (1969), Miller v California (1973), Gregg v Georgia (1976), Taylor v Louisiana (1975), and Batson v Kentucky (1986).

Public acceptance, needless to say, is important for all Supreme Court decisions, but that is especially the case for those that depart from precedents.

Some of these precedents like Plessy v Ferguson (1896) may themselves be well-known to the judicial community and considered to be ‘binding.’

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That is why Justice Powell argues that – contrary to what many think - the Warren and Burger courts were actually marked by a sense of judicial restraint and not by judicial activism.

It appears then that before explaining his interpretation of stare decisis, Justice Powell is mainly trying to take the position that the detractors of the Supreme Court are wrong in thinking that the Justices were departing from the doctrine of stare decisis.

What then is Justice Powell’s justification of the doctrine of stare decisis?

There are three important points that he invokes by way of a justification; they include the following:

1. It is not technically possible to rethink every case as would be required in a legal system which did not have any precedents at all; Justice Powell therefore invokes the arguments made in favour of stare decisis by Justice Benjamin Cardozo in his Storrs lectures as his first point.

2. Stare decisis increases the stability of the legal system. The areas that would be directly affected by its absence include personal rights, property rights, and commercial transactions. In the absence of these rights, the day-to-day life of citizens and business men would be affected and increase the total amount of litigation in at least these areas.

3. Stare decisis also increases the ‘public legitimacy’ of the judiciary; it assures the public that the Supreme Court is not making laws or doing policy on its own, but merely exercising the powers given to it by the Constitution.

Justice Lewis Powell is not only preoccupied with defending the record of the Warren and Burger Courts, but is also concerned with the criticisms that have been levelled on the doctrine of stare decisis in the context of constitutional and statutory interpretation.

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In the case of constitutional law, he is opposed to those who would argue that there is no need for the doctrine of stare decisis at all and that Justices should respond to significant sections of the Constitution without worrying about what the Supreme Court had decided on previous occasions.

The danger in this approach for Justice Powell is that it reduces constitutional interpretation to whatever the current majority decides should prevail in a given case.

It is important for him, as a member of the bench, to imbibe what previous Courts had to say on any given matter before deciding a case.

In the case of statutory interpretation, the argument is that stare decisis should be taken even more seriously than is the case now.

The argument, simply stated, is that the legislature can always undo the Supreme Court’s decision by coming up with new legislation if the Court were to make a mistake or misread its legislative intent.

If they haven’t done so, it means that the legislature and the judiciary are in agreement on how cases relating to a particular statute have been interpreted by the courts.

Justice Powell’s point however is that it may not be possible for the legislature to keep such a close watch on what the judiciary is up to and keep ‘fine-tuning’ the statute in response to how specific cases are decided.

So, Justice Lewis Powell would approach statutory interpretation with caution.

It must be remembered that statutes are often ‘open-ended’ and the legislature expects the courts to fill in the details in the context of the case law that develops in the context of a particular statute.

Justice Powell’s approach then partakes of a form of ‘modest adjudication’ that is characterized by a sense of judicial restraint; it is attentive to ‘rules of standing’ and does not attempt to ‘create new areas of judicial oversight.’

This amounts to saying that the Supreme Court should not get involved in administration, but only pursue its judicial function.

This modest approach to adjudication also involves a sense of restraint in the writing of opinions.

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Justice Powell is against the proliferation of ‘splintered opinions’ since it does not give the public the sense of cohesiveness that they seek in a judicial opinion.

It gives the impression that the judiciary does not take stare decisis as seriously as it should.

A textual instance of this is the need to avoid expansive footnotes in opinions which may later be cited by litigants as having precedential value; and deferring to the extent possible with boards, experts, and committees that have the technical knowledge to get their work done.

And, finally, Justice Powell points out – by way of a conclusion – that the doctrine of ‘stare decisis is essential to the rule of law.’

The importance of stare decisis is to be gauged by the fact that while it is not possible to infer the intent of the founding fathers with certainty, what Justices have in practice to get by is the ‘constant thread’ of decisions ‘in preserving the continuity and stability’ of the legal system.

As Justice Lewis Powell puts it, ‘in the long run, restraint in decision making and respect for decisions once made are the keys to preservation of an independent judiciary and public respect for the judiciary’s role as a guardian of rights.’

SHIVA KUMAR SRINIVASAN