by Geoffrey R. Stone

In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as as first-rate lawyers committed to the rule of law and, especially, to the principle of stare decisis.

Roberts assured the Senate that judges must "be bound down by rules and precedents." He piously declared that the Framers of the Constitution "appreciated the role of precedent in promoting evenhandedness, predictability, stability," and "integrity in the judicial process." Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances. "A sound judicial philosophy," he declaimed, must recognize that judges work "within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."

Similarly, Samuel Alito testified that stare decisis is "a fundamental part of our legal system." He explained that this principle "limits the power of the judiciary" and ensures that judges will "respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, is "not an inexorable command," but there must be a strong "presumption that courts are going to follow prior precedents."

It is hardly surprising that Roberts and Alito would pay such obeisance to stare decisis in order to get themselves confirmed. Stare decisis is, after all, a bedrock principle of the rule of law. Not only does it promote stability and predictability, but it also moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.

Disturbingly, John Roberts's and Samuel Alito's actions on the Court speak much louder than their words to Congress. During the past year, Roberts and Alito have repeatedly abandoned the principle of stare decisis, and they have done so in a particularly insidious manner.

Their tactic is to purport to respect a precedent while in fact cynically interpreting it into oblivion. Every first-year law student understands the technique. It works like this: "Appellant argues that Smith v. Jones governs the case before us. But Smith v. Jones arose out of an event that occurred on a Tuesday. The event in this case occurred on a Thursday. We do not overrule Smith v. Jones, but we limit it to events that occur on Tuesdays." This is, of course, a parody of the technique. But it captures the Roberts/Alito style of judicial craftsmanship.

Let me offer a few examples. In Gonzales v. Carhart, the Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called "partial birth abortions," even though the Court had held a virtually identical state law unconstitutional seven years earlier. As Justice Ruth Bader Ginsburg rightly observed in dissent, the majority, which included Justices Roberts, Alito, Scalia, Kennedy, and Thomas, offered no principled basis for ignoring the earlier decision. The only relevant change was Alito for O’Connor.

In Federal Election Commission v. Wisconsin Right to Life, the same five-justice majority held unconstitutional a provision of the Bipartisan Campaign Reform Act that limited political expenditures by corporations, even though the Court had upheld the same provision only four years earlier. As Justice David Souter rightly observed in dissent, Chief Justice Roberts’s opinion offered no principled basis for disregarding the earlier decision.

In Hein v. Freedom from Religion Foundation, the same five-justice majority, in an opinion by Justice Alito, held that individual taxpayers had no "standing" to challenge the constitutionality of the Bush administration’s program of faith-based initiatives as violative of the Establishment Clause, even though the Court had held some forty years ago that taxpayers do have standing to challenge federal expenditures on these grounds. As Justice Souter rightly observed in dissent, Alito's argument that the earlier decision was distinguishable because it involved a challenge to a legislative rather than an executive program has no basis "in either logic or precedent."

In Parents Involved in Community Schools v. Seattle School District, the same five-justice majority (with Justice Kennedy filing a separate concurring opinion), in an opinion by Chief Justice Roberts, held that the consideration of race by school districts in assigning students to public schools in order to promote racial diversity violates the Equal Protection Clause, even though the Court had unanimously declared more than thirty-five years ago that such a policy "is within the broad discretionary authority of school authorities."

As Justice Breyer rightly asked in dissent, "What has happened to stare decisis?" Breyer correctly observed that Roberts had distorted the Court's precedents, "written out of the law" a host of Supreme Court decisions, and disingenuously reversed the course of constitutional law. Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them.

John Roberts and Samuel Alito billed themselves as legal craftsmen who would be guided not by rank ideology, but by a respect for the rule of law. They have now proved otherwise.