With Kennedy’s retirement we’re already hearing from the left that basically every good thing that has happened in the last fifty years is going to be erased with the appointment of another constitutional conservative/constructionist/textualist etc.
I’ve heard the phrase “Stare Decisis” thrown around by more pundits in the last few days than I have in the last couple of decades or more.
Basically all the term means is the standing of prior precedents. There are two primary schools of thought on the subject, the first being that precedents should be treated as law, and the other that they should be considered but that they have no force of law outside of the specific case cited.
In the modern era more and more for various reasons judges and justices defer to precedent in their decisions either out of laziness or a desire to further change existing law and the constitution and in some cases simply out of ignorance.
With all of this discussion I decided to do some research on the subject and came across a great article that explains how Stare Decisis has been used both intentionally and coincidentally to more and more subvert our constitution.
It’s a good read in prep for all of the handwringing and wailing that we’re going to have to listen to over the next few months until the new justice is seated.
Intro:
How stare decisis Subverts the Law
Jon Roland
2000 June 10One of the most important doctrines in Western law is that of stare decisis, a Latin term of art which means “to stand by decided cases; to uphold precedents; to maintain former adjudications”.[1] In modern jurisprudence, however, it has come to take on a life of its own, with all precedents being presumed to be well-founded, unbiased legal decisions, rather than political decisions, and presumed to have both the authority of the constitutional enactments on which they are based, plus that of the precedents on which they are based, so that later precedents are presumed to be more authoritative than earlier ones.
The doctrine also tends to give great weight to the opinion in the case, even to the point of treating the opinion as though it was law, even though only the order and findings have the actual force of law, and only in that case, and an explanation of how the decision was reached is only dictum, or commentary. This means that a poorly-worded opinion can define a set of legal positions that exceed the bounds of the underlying constitutional enactments, and become the basis for future precedents, as though they were constitutional enactments themselves. The problem is exacerbated by the failure of judges to clearly delineate the boundaries between edict and dictum.
The doctrine tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level in the appeals hierarchy, and to demand the litigants “distinguish” their cases from adverse precedents, arguing that those precedents do not apply to the present case because of elements that make it different from the cases on which the precedents were established. This can be very difficult to do if there are a great many recent cases on the same issues which cover most of the possibilities.
The situation can be made more difficult by the rules of most courts which limit the length of briefs the litigants may file. In working backward through a long line of wrongful precedents, a litigant can reach the length limit before the argument can make it back to the foundations where the chain of precedents began to drift away from its authority in the constitutional enactments.
The situation can be illustrated by the Venn diagram in Figure 1, in which the first set A represents the set of legal positions consistent with the Constitution, and the points outside the circle represent unconstitutional positions. It is noted that the boundary of the set is fuzzy, representing the ambiguity of interpretation at the boundary. The central point B’ represents a court decision whose opinion defines a set of legal positions consistent with it, shown by the elliptical set with the letter B at the top, but a portion of that set extends beyond the bounds of A. The opinion in the next decision C’ also falls within A and defines yet another region C of consistent positions, but which extends beyond both A and B. Decision D’ falls within C, but not A or B, and further defines a consistency set that extends beyond A, B, and C. The Decision E’ doesn’t lie within any of the regions defined by the previous precedents, but its region of consistency overlaps D and barely C, the kind of situation that might result from a legal argument that reaches to get a political decision not based on precedent. Finally, the last decision F’ is based on E defines consistency set F but lies entirely outside A, B, C, and D.
The problem for jurisprudence, especially constitutional jurisprudence, is how to get back within A when one’s opponent’s position is supported by F and one cannot distinguish precedents taking the argument back to A within the brief page limits. It may be almost impossible unless or until one can get the case to the Supreme Court, which can ignore and reverse its own precedents, but which can take only about 75 cases a year, and is reluctant to issue sweeping opinions that can cover a large number of cases that might otherwise deserve to be granted certiorari, but which will never make it because the litigants are discouraged from making fundamental arguments that might work with the Supreme Court but which would be disfavored by lower courts… .
It isn’t a long read and it’s well worth the time.
