WASHINGTON -- Senators examining the nomination of Judge Clarence Thomas to the Supreme Court expressed concerns yesterday about the nominee's respect for judicial precedent and his views on a legal theory known as natural law.
But legal scholars said the high court already has moved away from a strict adherence to its precedents, opening the door for state and local governments to recover some power lost to the federal government in previous cases.
And they said Judge Thomas's expressed belief in natural law--a view that embraces a notion of inalienable human rights -- would be unlikely to have an immediate impact on the court's deliberations.
Nevertheless, some members of the Senate Judiciary Committee opened Judge Thomas's confirmation hearings yesterday by expressing their reservations about the federal appeals court judge and what they perceive as his conservative bent and potential impact on an already conservative court.
Sen. Howard Metzenbaum, D-Ohio, said he fears Judge Thomas, if confirmed, "may be a willing and eager participant in the Rehnquist court's assault on established precedent." William H. Rehnquist is the court's chief justice.
Under the doctrine of stare decisis, a Latin term meaning "Let the decision stand," courts tend to defer to previous rulings when confronted with similar cases. The practice provides "people some stability in planning their lives," said Walter Dellinger, a law professor at Duke University. "It's really a common sense doctrine that reflects a belief that rapidly changing law is unsettling to society."
Respect for legal precedent is a time-honored tradition dating back to English common law. But Suzanna Sherry, a law professor at the University of Minnesota's law school, said the doctrine "is sometimes observed, sometimes not."
A 15-year battle between Congress and the states bears out that observation. In 1976, the high court ruled 5-4 in National League of Cities v. Usery that the Constitution's commerce clause does not empower Congress to enforce provisions of the federal Fair Labor Standards Act "in areas of traditional government functions" -- a ruling that protected states from federal incursions on their powers.
But just nine years later, in another 5-4 ruling, the court threw out that precedent in Garcia v. San Antonio Metropolitan Transit Authority, ruling that states must rely on the national political process, and not the Constitution's 10th Amendment, to protect their interests.
The 10th Amendment provides that all powers not specifically given the federal government, or specifically denied to the states, are retained by the states.
Earlier this year, the court appeared to back away from its Garcia ruling, holding in Gregory v. Ashcroft that Missouri's constitutional requirement that state judges retire at age 70 does not violate either the federal Constitution or the federal Age Discrimination in Employment Act of 1967.
The Gregory ruling prompted Justice Byron R. White to complain that the court's ruling "directly contravenes" the court's prior rulings in Garcia and in South Carolina v. Baker, a 1988 case in which the court said the tax-exempt status of municipal bonds is not constitutionally protected.
"The court last term raised the possibility that it was willing to reopen consideration of whether states have some areas of autonomy," Mr. Dellinger said. "It's not clear how far the justices are willing to go."
Frank Shafroth, director of the National League of Cities' policy and federal relations operations, concurred, but cautioned that such a move by the court may be "down the road."
The same apparent trends that provide hope to state and local officials for a possible relaxation of federal control over municipal affairs gives others a cause for pause and concern. Mr. Dellinger said the high court "is moving in a very activist direction," noting that the justices appear more willing to give precedent weight in cases involving property rights than in those involving individual rights.
But Geoffrey P. Miller, a professor at the University of Chicago Law School, said it is "false to say there has been any dramatic change in the willingness of the court to overturn past precedent." He added, "Any court will manipulate stare decisis in order to achieve the outcomes they want."
Ms. Sherry said the Supreme Court currently appears activist in its willingness to overturn precedents. "But it doesn't go striking laws that conservatives don't like, so it is not activist in that sense."
In one of the ironies of the court's conservative transformation during the Reagan and Bush presidencies, the court's justices have tended to side with the decisions of lawfully elected legislatures. "This Supreme Court is not a pro-business court," Mr. Miller said. "It is a pro-political process court that is willing to defer to the decisions of legislatures and executive agencies even when they are quite liberal."
Another area of Judge Thomas' background being given strong consideration by judiciary committee members is the nominee's views on natural law. In speeches, Judge Thomas has embraced natural law as a touchstone in interpreting the Constitution. Some have expressed concerns that use of the theory could lead Judge Thomas to vote to overturn a woman's right to choose abortion or to overturn federal wage and time laws governing the work place.
Ms. Sherry said natural law was "somewhat discredited" at the time of the Civil War because it was espoused by members of both sides of the slavery debate. But she said a natural law view clearly was held by the nation's founders and is evident in the Ninth Amendment, which says the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Ms. Sherry said than in any event, natural law principles are unlikely to dominate the court's opinions. She noted that Judge Thomas, if confirmed, would carry only one vote of nine on the court.
