Were Supreme Court Justices Moved by Breyer’s Precedent Complaint?

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Were Supreme Court Justices Moved by Breyer’s Precedent Complaint?

Posted May 29, 2008, 08:10 am CDT
By Debra Cassens Weiss

Is the U.S. Supreme Court responding to a parting shot last term by Justice Stephen G. Breyer about the lack of respect for precedent?

The Supreme Court appeared to endorse stare decisis in two employment rulings earlier this week allowing workers to sue for retaliation even though the laws don't specifically allow it, the Washington Post reports. Both rulings cited the court’s interpretations of similar laws. One of the twin decisions issued Tuesday was written by Breyer himself.

Last year, Breyer complained in a dissent to a school desegregation ruling that the court is ignoring or overturning precedent. “It is not often in the law that so few have so quickly changed so much," Breyer said.

Breyer had argued the ruling striking down a school desegregation plan had undermined the landmark school desegregation ruling, Brown v. Board of Education.

This year, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined Breyer’s opinion in CROCS West v. Humphries in a suit filed by a black manager at Cracker Barrel Restaurants. Ilya Shapiro, a Supreme Court scholar at the Cato Institute, told the Washington Post that the two justices no doubt disagreed with the precedent but decided their views were not reason enough to justify overturning it.

She said the two conservatives appear to be more accommodating of precedent when it concerns statutory rather than constitutional interpretation. Other constitutional experts told the newspaper that some of the justices may be compromising to reach consensus.

The two dissenters, Antonin Scalia and Clarence Thomas, weren’t so constrained. "The court today retreats behind the figleaf of ersatz stare decisis," Thomas wrote in his dissent.

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