I'm always glad when the New York Times covers the Supreme Court, even when it does so with a liberal bias. And I am pleased that they have noted this interesting study of confirmation hearings, but am somewhat taken aback by the interpretation of the testimony and behavior of certain justices.

The study — with the unwieldy title “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court” —published in Constitutional Commentary, looked at how nine long-serving justices answered Senate questions, and how they then voted on the court. While it does not say that any nominee was intentionally misleading, it still found a wide gap.

Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would.

Here's the problem with the analysis - justices take an oath to uphold the Constitution of the United States, not the precedents of the Supreme Court. Their obligation when they find a precedent which they believe was wrongly decided is to make a decision that conforms with the Constitution, not the seemingly erroneous precedent. After all, it is the Constitution that is the highest law of the land, not the decisions of the Supreme Court.

Of course, the Warren Court also made short shrift of many earlier precedents. I don't see any objections to their work. But then again, that was a liberal court full of liberal justices, so I doubt that we will ever hear much criticism (explicit or implicit) out of the NY Times editorial board.