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July|August 2002
Under the Microscope By Brendan I. Koerner
Why Judges Rarely Change Their Minds By Edward Lazarus
Net Loss By Reed E. Hundt
History Lesson By Jack M. Balkin

Why Judges Rarely Change Their Minds

By Edward Lazarus

Justice Felix Frankfurter, one of the Supreme Court's headier writers, once threw a rope of aphorism to judges who reverse themselves. "Wisdom too often never comes," he said, "and so one ought not to reject it merely because it comes late." The saying captures the virtues of a recent about-face by Judge Louis H. Pollak, one of the nation's best federal trial judges, on whether expert testimony should be admitted into evidence to support the identification of a person by a fingerprint. Judges rarely change their minds and, as Pollak noted, they are discouraged from doing so. The question is why.

Pollak's decisions about evidence in United States v. Plaza present a clear-cut scenario for thinking about the issue. In an initial ruling in January, Pollak decided that a fingerprint expert could describe his methods and even point out to a jury similarities between samples of fingerprints, but couldn't offer an opinion about whether a latent print matched the print of a particular person. New information that fingerprint evidence is scientifically reliable persuaded Pollak to reverse himself. As he explained with unusual candor for a judge, the new evidence convinced him that this science is better accepted and has a more established track record for accuracy than he (and perhaps a law clerk of his) had thought.

In this sense, Pollak's turnabout was not a confession of error, but an open-minded re-evaluation in light of new evidence. Once he became convinced by the government's supplemental showing, Pollak faced the choice of sticking to his initial view or making what he now believed to be the correct ruling.

Factually speaking, the decision was a pretty easy one. But it's likely that many trial judges wouldn't have asked themselves whether they should make it. Trial judges in both the federal and state systems are notably overworked, sometimes juggling over 100 cases at a time. For their courtrooms to function, they can't afford to second-guess themselves, at least not regularly. A judge who stops to reconsider too many rulings, even important ones, risks the Chaplinesque fate of falling behind on the judicial assembly line. Given the number of decisions a trial judge must make every day, indecisiveness is a step away from personal despair. And it invites a daily fight for control of the courtroom by encouraging litigants to believe that no argument before the judge is ever truly lost.

In Plaza, Pollak set aside these competing concerns. He understood that his conclusion would hit courtwatchers like a bombshell. This was a ruling worthy of additional time and attention—and Pollak's second opinion leaves the impression that he had little reservation about either.

As Pollak recognized, the hierarchy of the court system—which provides for the correction of error by at least one appellate court—gives trial judges an additional reason not to tarry with second thoughts. Serious mistakes will be reversed up the chain of command. But even at the Supreme Court, which has a special responsibility to correct mistakes since there's no one higher up to do it for them, the justices are loath to concede errors or even their possibility. As Justice Hugo Black was fond of advising newly appointed justices, "it is best never to show doubt."

Still, court history contains some notable about-faces. In the famous "switch in time that saved nine," Justice Owen Roberts abandoned his opposition to New Deal economic regulation and (in West Coast Hotel v. Parrish) joined a 5-4 majority opinion creating an expansive view of federal legislative power. In the 1985 case Garcia v. San Antonio Metropolitan Transit Authority, Justice Harry Blackmun wrote (and provided the decisive vote for) an opinion overruling National League of Cities v. Usery—a decision he had joined nine years before that prohibited the federal government from regulating "traditional" state functions. And in a recent, much talked-about concurring opinion, Justice Clarence Thomas, in Apprendi v. New Jersey, said he'd "succumbed" to error in one of the court's previous attempts to define the respective roles of judge and jury in criminal sentencing.

Such turnabouts don't always come, as Pollak's did, with a justification attached. For example, Roberts gave no signal that he'd reached a new understanding of economics or of the court's proper role in evaluating economic legislation. So political observers attributed Roberts's switch to politics—specifically, the announcement of President Franklin Roosevelt's infamous plan to go around the court's opposition to New Deal reforms by packing it with supporters. (Roosevelt eventually withdrew the plan in the face of broad opposition, but Roberts's cynically received switch accomplished the result that FDR desired.)

Generally speaking, though, confessions of error can be divided into two categories. Blackmun's shift between Usery and Garcia was a Supreme Court version of Pollak's reversal due to new evidence. As Blackmun explained, his change of mind reflected ten years of failed experience with Usery's "unworkable" approach. Thomas's confession of error in Apprendi, however, stemmed from no new facts or experience. It was the purest form of reversal—no excuses, I just got it wrong.

In the end, there may be little difference between reconsidering a position in light of new information (Pollak and Blackmun) and reconsidering the same constitutional language and history in light of further study and reflection (Thomas). Each may either be a mask for low-minded political maneuvering or the high-minded search for truth and justice. But a Thomas-like reversal is more self-abnegating—and, for that reason, more surprising.

Inside the court, you might expect the best of this practice to be encouraged. The court is self-conscious about having ultimate authority over the meaning of federal law. Surely, it ought to respect the value of second thoughts and of getting things right. After all, reconsideration can reflect open-mindedness, truth-seeking, and intellectual integrity as much as indecisiveness, a lack of acuity, or political cravenness.

Yet the justices have a habit of neither forgiving nor forgetting confessions of error. Chief Justice William Rehnquist has repeatedly exacted a small measure of revenge for Justice Blackmun's Garcia flip-flop—which overturned the Rehnquist-authored Usery. In calling for the court to overturn Blackmun's most famous opinion, for the majority in Roe v. Wade, Rehnquist has made a table-turning point of citing Garcia as support.

Even nonpublic reversals have been cause for recrimination. In 1992, for example, Justice Anthony Kennedy changed his vote after the justices split 5-4 when they initially talked about Lee v. Weisman, where the issue at stake was whether an ecumenical prayer could be read at the graduation ceremony of a public school. Initially, Kennedy had provided the swing vote for holding the prayer constitutional. Chief Justice Rehnquist was so pleased with this result that he rewarded Kennedy with the assignment of writing the opinion.

As he worked on his draft, however, Kennedy had second thoughts and eventually decided that he was on the wrong side of the case. After an awkward confessional with Rehnquist, Kennedy ended up writing a majority opinion for exactly the proposition he had once opposed—that the prayer be declared unconstitutional.

Kennedy's turnabout, like Thomas's last term, was a pure example of admitting that a previous view of the Constitution was wrong. Kennedy's reversal was especially wrenching because he had written a dissenting opinion a few years earlier laying the groundwork for exactly the change in First Amendment law he now balked at making.

On its face, there would seem to be courage in such an admission, but Kennedy's willingness to accept and wrestle with doubt earned him few fans. Generally speaking, court liberals were relieved at the result, but thought he was posturing—so as to appear more moderate—rather than genuinely committed to their point of view. Meanwhile, according to one court observer, Justice Antonin Scalia saw Kennedy's action as an almost personal betrayal that proved his lack of intellectual fortitude. Indeed, the dissent of Scalia from Kennedy's Weisman opinion is one of the most vitriolic public scoldings one justice has ever delivered to another.

If that's what you get for admitting you were wrong the first time, small wonder that some justices struggle to reconcile sharply conflicting views in two successively written opinions. So Justice Sandra Day O'Connor insists that her view of Roe v. Wade remains unchanged despite the obvious differences between the deep hostility she expressed to the landmark abortion ruling in 1983 in City of Akron v. Akron Center for Reproductive Health and, nine years later, in her landmark reaffirmation of the principle of reproductive freedom in Planned Parenthood v. Casey.

Justices also struggle because confessions of error carry a cost to the workings of the law. They introduce a degree of uncertainty and instability by raising doubts about the meaning of precedent. But the alternative creates a sclerosis of the mind and of the judicial process.

It denies to the law the transformative power of reflection and experience. It also perpetuates a dangerous myth, which is that judges and the judicial system are infallible.

Edward Lazarus practices law in Los Angeles with the firm of Akin Gump Strauss Hauer & Feld and is the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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