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.

A Bite Out of Apple

In a surprise decision, the Supreme Court yesterday, May 13, 2019, in a divided decision handed a major victory to plaintiffs in a massive antitrust lawsuit against Apple.  By a vote of 5-4, the justices allowed the suit, brought by a group of iPhone users who allege that Apple is violating federal laws by requiring them to buy apps exclusively from the App Store, to go forward.

In the original trial court in California, the lower court relied on a 1977 Supreme Court Case entitled Illinois Brick Co. v. Illinois to dismiss the suit.  In Illinois Brick, the Supreme Court ruled that triple damages for violations of federal antitrust laws are not available to an "indirect purchaser," that is to a person whose claim is not that he was personally overcharged, but instead that the defendant overcharged a middle man, who then passed along the extra charge to the plaintiff.  This is the position that Apple and the Trump Justice Department took, that the App Developers are charged a 30% commission by Apple and that they, not Apple, are the one's who pass it along to the end customer, meaning the end customer is not a direct customer of Apple.

On appeal, the U.S. Court of Appeals for the 9th Circuit reversed and reinstated the case.  The court of appeals found the case much simpler and differentiated from Illinois Brick.  Here, the end customers and plaintiffs bought directly from Apple through the App Store and paid Apple for the applications, despite the developer setting the price.  Apple then is a direct distributor, selling the apps through the App Store.

The Supreme Court agreed with the 9th Circuit.  Surprisingly, Justice Kavanaugh sided with the courts more liberal justices to pen the opinion.  While Illinois Brick "established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers," Kavanuagh found that the iPhone users were direct purchasers from Apple and therefore could bring an antitrust lawsuit against the company because they "bought the apps directly from Apple."

Perhaps this signals a time when we are going to get serious about scrutinizing monopolies again.  Certainly, if this suit is ultimately successful, it will have major implications for online marketplaces like Google's Play Store or Amazon's Marketplace.  It could even have more far reaching implications for companies like Amazon itself.

And maybe that's a good thing.

I've already written about the ubiquity of the tech giants in our lives and how their reach is becoming even more insidious.    Think for a minute about how much Google has a hand in, from the backbone of the internet to smart home devices.  Even worse, think about Amazon.  You could use an Amazon Echo to ask Alexa to buy you Amazon branded merchandise on their web platform (which they can promote over other brands), on which you could use AmazonPay to then get your item shipped to an Amazon Locker if need be by an Amazon truck or eventually could get delivered to your front door via an Amazon drone.  If you have a Ring doorbell, the Amazon delivery driver could even bring it in the front door for you and leave it.  That doesn't even touch the websites that are using Amazon Web Services without you even knowing it.

And that's just in tech.  How about the monopolies that exist in prescription drugs, even for generics?  Or the monopoly in mandated school testing and test prep?

I'm as big a fan as any of the Walt Disney company, but even I can list you the negative effects of their merger with 20th Century Fox.  It may not be as dangerous as the AT&T-Time Warner merger.  There was a reason why United States v. Paramount Pictures stopped motion picture studios from owning their own distribution channel in movie theaters.

We seem to be getting a lot of Ma Bells and Standard Oils now.  Maybe it's time to get back into the trust busting business.

The End of Moderation

And so an era ends.

Justice Anthony Kennedy has announced that he will be retiring this summer.  And while the name of the Court has changed over his tenure from Chief Justice to Chief Justice, the court has largely been in Justice Kennedy's hands.  Particularly from 2005 to date, ruling from the center.

Justice Kennedy is/was the court's wild card, its conscience.  The all important swing vote necessary for the all-too-common 5-4 decisions that have typified modern Supreme Court rulings.   A role that makes him both admired and condemned.  He has sided with a more liberal approach to gay rights, abortion, and the death penalty, but remained conservative on voting rights, campaign finance, and gun control.

To me, Justice Kennedy's departure represents the end of something that is sorely missing in this country:  moderation.  The ability to decide a case based on the facts and merits of the case as it is brought before the court.  Not to walk in with an expected set of values that will be upheld or to arrive at a decision aligning with political ideology.  To evaluate the case placed before the court, and potentially arrive a decision that may be surprising. 

And while I've couched this in terms of the Court, it is missing nationally in a much broader context.  We are living in an era in which everything is filtered through a set and regimented ideology.  Our news feeds are even now self-selecting to ensure we only receive the information that aligns with our view point.

It seems our Court will likely head in that direction now.  President Trump and the Republicans are moving fast to appoint a successor, hoping to do so before the mid-term elections.  The prevailing thought is that the court will now be solidly 5 conservative, 4 liberal with little swing.  [An upside would be that it makes this period of Constitutional Law a little more straightforward - little guesswork].

I pray for the days of more swing votes.  For more Justice Kennedys.

We need moderation now more than ever.

The Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n Compromise

The Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n this week in favor of the baker who refused to bake a cake for a gay couple's wedding on the basis of his religious beliefs.  The baker had also argued a free speech component, that his cakes represented his exercise of free speech and he should not be compelled to write anything he does not with to.

It's important to note that the Supreme Court decided the case on a very narrow basis.  It did not address whether someone can refuse to comply with a law that forbids discrimination on the basis of sexual orientation because of a free exercise or free speech argument.  This means that this type of argument will arise again and will likely be brought before the Supreme Court again.  Justice Kennedy even alluded to this in his opinion.  "Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission's actions here violated the Free Exercise Clause; and its order must be set aside."  584 U.S. ____, 3 (2018) (emphasis added).

The Court decided the case on the narrow procedural grounds of the particular facts of the case, here noting the hostility to religion in the comments of the Colorado Civil Rights Commission.  While there are persuasive statements in Justice Kennedy's opinion regarding the interaction of the law and religious freedom in general, the controlling language pertains to this Commission and the various steps they put the bakery through.  Justice Kennedy wrote that the owner Philips was entitled to a "neutral and respectful consideration" of his case before the Commission, which he did not receive.  The Commission instead was impermissibly hostile toward the sincere religious beliefs that motivated his objection, often "endorsing a view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, and implying that religious beliefs and persons are less than full welcome in Colorado's business community."

In short, the Supreme Court concluded that the Commission acted improperly in its decision making process, not that exactly that it reached the wrong conclusion.  It's a compromise decision, punting the ultimate Constitutional issue down the field a little farther.  There will be another case like this, and this debate will continue.  Hopefully, there can be a little more love and grace all around as we continue to work towards a resolution.

If you would like to read the full decision, it can be found here.