Chief Justice Roberts on Brown

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This is a dumb question:

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose "unique circumstances" prevented them from meeting court filing deadlines was now "illegitimate"?

They also both assured their Senate questioners at their confirmation hearings that there were times when precedent should be overturned. Linda Greenhouse may be asking it because she wants to explain it, though it still comes off to me, at the very least, as though she is implying it is reasonable to think they would not overturn precedent because they promised they wouldn't, when in fact, they did no such thing.

Now, some people think Roberts is voting to overrule Brown v. Board of Education itself in this decision. In an ironic footnote, Roberts, in his confirmation hearing, used Brown as an example of when overturning precedent is a good idea (a fact which undermines both the claim that Roberts said he was slavish to precedent, and the notion that a good justice should be):

Roberts: If a overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability...

Specter: Go ahead.

Roberts: I was just going to say, the principles of stare decisis recognize that there are situations when that's a price that has to be paid. Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions.

Those were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable, carried the day in those cases.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

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