Nearly fifty years ago, comedian Bill Cosby did a very funny skit called “Oops,” about how a patient, awake under local anesthesia, might react on hearing the surgeon use that word in the operating room. “Did you say ‘oops,’” Cosby asked? “What do you mean ‘oops’?”

But when Supreme Court Justices decide, after the fact, that they may have made a mistake, it is rarely a laughing matter.

The most recent example of a Justice expressing second thoughts was Sandra Day O’Connor, who retired in 2006.  Last month she told the editorial board of the Chicago Tribune that perhaps the Supreme Court should not have ruled in the case of Bush v. Gore, the December 2000 decision that halted the Florida recount and gave the presidential election to George W. Bush.

What does it mean when a Justice says she has doubts about whether her earlier view was right? It is a question worth exploring for students of the Supreme Court, as well as for those interested in legal history and in particular areas of the law in which Justices have expressed second thoughts.

It is certainly not an everyday occurrence when a Justice expresses doubts about a past decision. But it is also not unprecedented, and some past revisits have involved other high-profile cases that provoked considerable public attention. We will explore some examples, but first let us consider what Justice O’Connor said about Bush v. Gore.

“Maybe the court should have said, ‘We’re not going to take it, goodbye,” O’Connor, who retired in 2006, told the Tribune’s editorial board. She said, “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

The Court ended the Florida recount by a five-to-four vote, effectively electing President Bush. It is unclear, though, precisely what difference Justice O’Connor’s view might have made. It is quite possible that, even without her, there were still the four votes (Chief Justice William Rehnquist plus Justices Scalia, Kennedy, and Thomas) needed to hear the case , so it might not have made any difference at the time. And her remarks do not suggest that, once the Court took up the case, she would have changed her vote and allowed the recount to continue.

In other words, Justice O’Connor’s regrets may have no real meaning at all because nothing she said would have changed the outcome. It is possible, of course, that she might have persuaded others on the Court to bypass the case, if that had been her view at the time. That, we will never know.

So what is the significance of a Justice announcing a change of heart? In many ways it is a frustrating and unsettling development. Such pronouncements do not change the law, but they cannot help but create a feeling of instability. The many critics of the Bush v. Gore decision now feel they have new evidence that the case was wrongly decided, but the status of the ruling as precedent is no less solid today than it was before Justice O’Connor spoke.

Such comments also create the false sense that perhaps a decision is more likely to be reconsidered or even overruled. But most such reflections by Justices take place after they have left the bench and have little or no impact on those presently sitting on the Court.

Still, Justice O’Connor is by no means alone. The most famous second thought in recent decades is attributed to the late Justice Lewis Powell. Powell cast what would seem to have been the deciding vote in 1986 in Bowers v. Hardwick, in which the Court ruled by a vote of five to four that gays and lesbians had no right of sexual privacy to engage in sodomy.

Powell retired a year later, and then in 1990, responding to questions after a speech at New York University Law School, said, “I think I probably made a mistake in that one.” According to his biographer, Professor John Jeffries of the University of Virginia Law School, Justice Powell told a reporter soon after the NYU appearance, “When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments.”

The Court overruled Bowers v. Hardwick in 2003, seventeen years after it was decided and thirteen years after Powell repudiated it. There is no evidence that Powell’s second thoughts played any part in the decision in Lawrence v. Texas, in which the Court found that there is a right of sexual privacy for gays and lesbians for private conduct between consenting adults. In the years after Powell’s speech and before the Lawrence decision, Powell’s recantation undoubtedly ratcheted up the level of dissatisfaction with Bowers, which nevertheless remained the constitutional standard.

Far less visible was Justice Powell’s change of heart over the death penalty. In an interview with Professor Jeffries in 1991 for the biography, Powell said he would change his vote in McCleskey v. Kemp, a 1987 ruling, decided by a five-to-four vote, in which the Court rejected the argument that the death penalty in Georgia was being administered in a racially discriminatory fashion. In his opinion for the Court, Powell rejected the evidence of a statistical study that showed racial disparities in death sentences that were based on the race of the victim.

When Jeffries pressed him on his comment, though, it turned out Powell was repudiating the death penalty itself, rather than his decision in McCleskey. His criticism was that the inability of states to carry out the death penalty in a fair and constitutional manner undermines the credibility of the Court and the criminal justice system. “It brings discredit on the whole legal system,” Powell told Jeffries.

The death penalty seems to be a favorite target for introspection for Justices at or near the end of their judicial careers. Justice John Paul Stevens, who left the Court in 2010, said after he retired that he regretted his vote in 1976 to uphold seemingly fair, new procedures for the death penalty in Gregg v. Georgia and related cases. Justice O’Connor, who voted to uphold many death sentences, expressed concerns about the execution of innocent persons in speeches during her final years on the Court. Justice Harry Blackmun announced shortly before leaving the Court in 1994 that he felt “morally and intellectually obligated to concede that the death penalty experiment has failed.”

Are these reconsiderations significant? Rising uncertainty about the death penalty among former Supreme Court Justices may have an impact on the societal debate over the fairness and morality of capital punishment. But the current Supreme Court shows no sign of being influenced by these second thoughts by their former colleagues.

One other example deserves mention. The late Justice William Brennan expressed a more specific regret about his choice of the legal term “actual malice” as the standard to be used in libel lawsuits filed by public figures or public officials. In the Court’s 1964 ruling in New York Times v. Sullivan, Brennan wrote for the majority that a public official could not recover damages for libel without showing that the statement or publication was made either with knowledge that it was false or with “reckless disregard” for whether it was true or false. The legal standard was intended to provide substantial protection for the news media and the public to engage in debate and criticism without fear of libel lawsuits.

But Brennan told this author for his biography, Justice Brennan: Liberal Champion, that he thought it was too hard for juries to distinguish between the non-legal meaning of malice and the legal use of the term. He said he should have picked a different term,

With Justice Brennan’s comments, as with the second thoughts of other Justices, the practical effect is minimal. While the soul-searching introspection of former Justices is fascinating to those who follow the Court and its work product, the law does not change with second thoughts.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): When Justices express regrets, SCOTUSblog (May. 14, 2013, 11:12 AM), http://www.scotusblog.com/2013/05/scotus-for-law-students-sponsored-by-bloomberg-law-when-justices-express-regrets/