Sand, Gravel and Stare Decisis

An otherwise mind-numbing Supreme Court ruling this morning nonetheless contains an interesting debate among the justices about an issue that often comes up during confirmation hearings: stare decisis, or the importance of respecting precedent. Justice Stephen Breyer, in reading a summary of his decision from the bench, seemed to deliberately highlight what he wrote about the issue, which actually takes up only a few sentences at the end of the 7-2 decision.

At issue in the case decided today, John R. Sand & Gravel Co. v. United States, was the statute of limitations for claims involving mining leases made to the U.S. Court of Federal Claims. In reaching his conclusion, Breyer relied on a series of precedents dating back to the 1880s. But he also discussed somewhat related and more modern decisions that the petitioner, the gravel company, asserts have rendered the older precedents "anomalous."

Breyer said "basic principles of stare decisis, however, require us to reject this argument." In essence, Breyer said that even though junking the old precedents and following the new ones might make sense, the importance of following precedent, at least in this case, was more important. He quoted the old saw by Justice Louis Brandeis that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Breyer continued, "To overturn a decision settling one such matter simply because we believe that the decision is no longer 'right' would inevitably reflect a willingness to reconsider others. And that willingness would itself threaten to substitute disruption, confusion and uncertainty for necessary legal stability, We have not found here the factors that might overcome these
considerations."

Interestingly, Breyer's opinion was joined not only by Justices David Souter and Anthony Kennedy, but also by the Court's reliable conservatives, some of whom have shown signs in recent years that they are itching to topple some precedents: Chief Justice John Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel Alito Jr.

Justices John Paul Stevens and Ruth Bader Ginsburg wrote dissents that addressed the merits of the case as well as Breyer's pronouncements on stare decisis.

Stevens said if the precedents are no longer good law, the Court should opt for clarity "rather than preserving an anachronism whose doctrinal underpinnings were discarded years ago." He quoted Oliver Wendell Holmes who criticized holding on to old rules for no other reason than "blind imitation of the past."

For her part, Ginsburg said, "It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions." Noting that the Court in recent years has been willing to overturn several time-honored precedents, she added a zinger: "After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions."

So, will this discussion of precedents serve as a precedent when the Court considers overturning precedents in the future, so to speak? Probably not, says University of Cambridge professor David Garrow, who thinks that, given the low-voltage case it is contained in, and the lineup of justices, today's debate on stare decisis amounts to "pretty small beer."