WASHINGTON – When Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. successfully navigated their Senate confirmation hearings, both promised to show deference to U.S. Supreme Court precedent.

Now, following oral arguments last week in a major campaign finance case, it appears they will vote to overturn two prior Supreme Court cases, a move that critics say shows that their adherence to a modest judicial philosophy is patchy at best.

But a close reading of the confirmation hearing transcripts shows that Roberts and Alito, who were both nominated by George W. Bush in 2005, left themselves plenty of wiggle room when it comes to re-appraising old cases they disagree with.

Although both said they would respect stare decisis, the legal concept of respecting the authority of prior court decisions, neither said justices should always follow Supreme Court precedent.

Their comments could help justify their actions if, as most observers predict, the court strikes down restrictions on independent corporate-funded speech prior to federal elections. Citizens United v. FEC, 08-205.

To reach that goal, the court would have to overrule two prior Supreme Court cases that gave the court’s blessing to restrictions on corporate spending:Austin v. Michigan Chamber of Commerce, 496 U.S. 652 (1990) and McConnell v. FEC, 540 U.S. 93 (2003).

During the argument last week in Citizens United, Roberts and Alito gave no hint they were inclined to avoid the First Amendment question presented in the case and decide the case on narrower grounds.

Roberts has also given prior warning as to where he stands on campaign finance issues following his majority opinion in a related case two years ago, when the court weakened a key provision of the landmark McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002. FEC v. Wisconsin Right To Life, 551 U.S. 449.

Alito, who was in the majority in that case, wrote a brief concurring opinion in which he pointedly did not rule out overturning McConnell at a later date.

Some court-watchers, however, are loath to predict a broad constitutional ruling in the campaign finance case after being burned last term when they made similar forecasts on an important voting rights case.

Then, Roberts and Alito were part of an 8-1 majority that avoided the constitutional question and thereby upheld a vital part of the Voting Rights Act.Northwest Austin Municipal Utility District Number One v. Holder, DJDAR 8986.

Other legal experts point out that although the court did not decide the constitutional question in the voting rights case, it could return to it at a later date.

Remarks to Senators

Roberts and Alito both faced questions about how they would approach stare decisis during their confirmation hearings.

From the perspective of senators, particularly those who are pro-choice, the questioning was an attempt to pin the nominees down on their willingness to overrule Roe v. Wade, the landmark 1973 case that endorsed the right of women to have abortions.

Although unwilling to elaborate much on that issue, Roberts and Alito did give lengthy legalistic explanations of their interpretation of stare decisis.

Roberts, whose hearing took place in September 2005, described overruling precedent as “a jolt to the legal system” that should be avoided unless absolutely necessary.

“It is not enough that you may think the prior decision was wrongly decided,” he said. Justices have to take into account “settled expectations” and such issues as “the legitimacy of the court,” “whether a particular precedent is workable or not” and “whether a precedent has been eroded by subsequent developments,” Roberts added.

During Alito’s confirmation hearing in January 2006, the nominee acknowledged under questioning from then-Sen. Joseph R. Biden Jr., D-Del., that the Supreme Court does not need to follow its own precedents.

“It is not an absolute requirement, but it is the presumption that the court will follow its prior precedent,” he said. Alito then added that the court does, however, “need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important.”

He cited the notorious 1896 ruling Plessy v. Ferguson, in which the court endorsed separate-but-equal accommodations for blacks and whites, as an example of a case the court rightfully overruled.

Justices not boxed in

Looking back at those comments, “there are no statements that either made that boxes them in,” said Rick Hasen, an expert in election law at Loyola Law School in Los Angeles. The justices are now engaged in process of balancing their respect for stare decisis with their misgivings about the earlier rulings, he added.

Other legal experts, like Doug Kendall, of the Constitutional Accountability Center, a progressive legal group that supports campaign finance limits, concede the justices can overrule cases but stress that any court that does so needs stronger justification.

“It’s tough for them to justify overturning a precedent like Austin,” Kendall said. Although Austin was decided in 1990, it is based on 100 years of campaign finance law, Kendall added.

Key to how the court will rule is Roberts’s and Alito’s willingness to categorize the case as a recent ruling that is not settled law, he said.

The oral argument would suggest that they have no qualms about categorizing it that way, especially Alito, who at one point expressed his views with some clarity.

“All of this talk about 100 years and 50 years is perplexing,” Alito said. “It sounds like the sort of sound bites that you hear on TV. The fact of the matter is that the only cases that … may possibly be reconsidered are McConnell andAustin. And they don’t go back 50 years, and they don’t go back 100 years.”

Who’s leaning which way?

Michael O’Neill, who was chief counsel of the Senate Judiciary Committee during both the Roberts and Alito confirmation hearings, thinks that Alito may have fewer reservations than Roberts about overruling precedent.

In some ways Roberts still thinks like the advocate he was, O’Neill said, keen to raise issues that later courts can address down the line.

Alito may be less reluctant to reappraise precedent because, having spent 16 years as a judge on the 3rd U.S. Circuit Court of Appeals, he is not so conscious of the disruptive effect such changes can have on practicing lawyers, O’Neill added. Lawyers on the ground “have a more conservative approach because they know how a big jolt to the law can affect the parties,” he said.

Roberts, meanwhile, has said he favors an incremental approach to changing the law.

His opinion in the 2007 campaign finance case, which weakened the McCain-Feingold law by allowing corporations to fund issue advertising that does not explicitly endorse a candidate, would seem to reflect that view.

Famously, his opinion limiting the scope of campaign finance laws prompted fellow conservative Justice Antonin Scalia to describe his approach as “faux judicial minimalism” and “judicial obfuscation” because the chief justice did not specifically overturn the court’s 2003 ruling in McConnell.

Citizens United now gives Roberts the chance to reap the fruit of the seeds he planted in that earlier opinion, having given clear notice of his intent.

“That appears to be what he is doing here, which is quite appropriate,” said O’Neill, now a professor at George Mason University School of Law. “You hate to move the law in fits and starts.”

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This article can be found in its original form here.