Thursday, June 20, 2019

Stare Decisis

"When faced with a demonstrably erroneous precedent, my rule is simple:  We should not follow it."
Justice Thomas, Gamble v. United States, Concurrence

Stare decisis is Latin for "to stand by things decided."  It is one of the fundamental, governing principles of our judiciary.  The doctrine of precedent.  

The doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”  This results in a system in which the court need not continuously reevaluate the legal underpinnings of past decisions and doctrines.  It operates in a horizontal and vertical manner.  Horizontal stare decisis refers to a court following its own precedent.  In vertical stare decisis, the court applies precedent from a higher court.  

It is an important doctrine, but it is not all-controlling.  Judge Rehnquist explained that stare decisis is not an “inexorable command,” as the Court can overrule precedent, but does so with through an exercise of caution.  Precedent can be overruled if the prior decision is deemed unworkable or in the event of significant societal changes.  

Though the doctrine has been applied through our judicial history, comments by Justice Thomas made Monday, June 17, 2019, in his concurrence in the Gamble v. United States matter have brought the application of stare decisis into question.

My view of stare decisive requires adherence to the decisions made by the People - that is, to the original understanding of the relevant legal text - which may not align with decisions made by the Court,” Thomas wrote.

Thomas said the court should “restore” its jurisprudence relating to precedents to ensure it exercises “mere judgment” and focuses on the “correct, original meaning” of laws it interprets.  “In our constitutional structure, our rule of upholding the law’s original meaning is reason enough to correct course."

The late Justice Scalia told his biographer that Thomas “doesn’t believe in stare decisive, period,” and that “if a constitutional line of authority is wrong he would say let’s get it right.  I wouldn’t do that.

(And if the late Justice Scalia believes your view goes too far to the right, it probably goes too far.)

Other commentators go further.  “Thomas says legal questions have objectively correct answers, and judges should find them regardless of whether their colleagues or predecessors found different answers.”  Jonathan Entin, a law professor at Case Western Reserve University in Cleveland.

The position is not unique.  There are many originalists who believe that the Constitution and legislation provide plain, unambiguous intent that should be followed.  And in several passages, that is true.  There are clear requirements that the President must be thirty-five years old, a senator will serve a six year term, and a representative will serve a two year term.

There are also several passages that are definitely ambiguous.  That need interpretation and adjustment.  What does "necessary and proper" really mean?  "High crimes and misdemeanors" has never really been defined.  "Equal protection under the law" in practice?

Even more troubling, what accounts for "demonstrably erroneous precedent?"  Thomas would expound that it refers to precedent that is "not a permissible interpretation of the text," but it raises the question of whose interpretation.  As an originalist, he would say, the founders, but that's not perfect.

Were we to follow Justice Thomas' repudiation of stare decisis to the letter, he would not be a person under the Constitution.  The founders certainly did not view African Americans as persons at the time.  That would take 90 years for a reinterpretation.  And another 90 years for Thomas to be able to wed his wife, with the court's decision in Loving.

What Thomas and other originalists really desire is to implement their interpretation.  To institute their vision of which cases have been decided correctly and to remove those cases which have been decided incorrectly according to their view.  To move away from a continually evolving recognition of rights and privileges back to a static set, locked in a pervious historical view.

That's the irony - they don't want to do away with precedent.  They want to focus on their particular choice of precedent.

That's no way to govern.  That's no way for the court to operate.

The doctrine of stare decisis already provides a method for improper decisions to be overturned.  It just makes it more difficult in order to ensure that changing settled and decided law is something that is warranted.  Something that is worked for.  Something that is not politically motivated, but is truly required by the spirit of jurisprudence.

It allows for Plessy v. Ferguson to be overturned by Brown v. the Board of Education, because separate is inherently unequal.  It allows for Bowers v. Hardwick to be overturned by Lawrence v. Texas, because what two consenting adults do in private affecting only the two of them should not be regulated by the state.  It allows Baker v. Nelson to be overturned by Obergefell v. Hodges, because sexual orientation does not invalidate equal protection of the law.

It's worth protecting and fighting for.  Not against.

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