I entered law school in the fall of 1979. In my first year I took a course in legal writing and research. In my first writing assignment I was assigned the task of writing a mock court opinion regarding the legal doctrine of spousal immunity, a judge made rule. I upheld the doctrine of spousal immunity.
My law instructor (Michael Makibe) said he wished that I had written an opinion overturning the doctrine of spousal immunity. He stated: “May not a court abrogate the court made doctrine” (page 4).
Apparently, Mr. Makibe had never heard of the doctrine of “super stare decisis” or “super precedent.” Liberals like to say that Roe v. Wade is super-precedent since the decision has been reaffirmed many times by the Supreme Court over the years. The issue comes up with liberal senators at confirmation hearings every time the president nominates a conservative to the U.S. Supreme Court.
“Super stare decisis” is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power, or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned.
In 1976 — three years before I entered law school — Richard Posner and William Landes coined the term “super-precedent,” in an article they wrote about testing theories of precedent by counting citations. Posner and Landes used this term to describe the influential effect of a cited decision. The term “super-precedent” later became associated with different issue: the difficulty of overturning a decision. In 1992, Rutgers professor Earl Maltz criticized the Supreme Court’s decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed “by a kind of super-stare decisis.” The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term “super stare decisis” now usually refers.
The concept of super-stare decisis (or “super-precedent”) was mentioned during the interrogations of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the chair of that committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a “super-precedent.” He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept.
I was right. My instructor was wrong !!