Supreme Court

When Should the Supreme Court Overturn One of Its Own Precedents?

SCOTUS weighs stare decisis in Friedrichs v. California Teachers Association.

|

Black's Law Dictionary defines stare decisis as "the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation." The phrase is Latin, and it means "to stand by things decided."

The doctrine of stare decisis was at the heart of Monday's oral arguments in Friedrichs v. California Teachers Association. At issue was whether the Supreme Court should overrule its 1977 precedent Abood v. Detroit Board of Education, a case in which public-school teachers were required to pay mandatory union fees, as a condition of government employment, even though the teachers were not union members.

"You come here, of course, with a heavy burden," Justice Elena Kagan told Michael Carvin, the lawyer representing Rebecca Friedrichs and the other California teachers challenging the state's mandatory union fee scheme on First Amendment grounds. "That's always true in cases where somebody asks us to overrule a decision." Kagan left little doubt that she would leave Abood firmly in place.

Credit: C-SPAN

Justice Stephen Breyer raised a similar objection to the teachers' case. "What about the Eighth Amendment?" he asked Carvin. "There's an individual right, some think, perhaps, against capital punishment. The Court has consistently ruled against it. So I guess if that's ever considered again, under your view, the Court would give no weight to stare decisis."

But Carvin didn't flinch. "If the Court was convinced that capital punishment was clearly outlawed by the Constitution," he told Breyer, "I think it would be very strange to tell people who were being executed in the future that even though this is an unconstitutional execution, we are bound by our erroneous prior decisions."

That's exactly right. And Breyer knows it. After all, Breyer has his own record of voting to overturn precedents that he believes to be wrong. In 2003, for example, Breyer joined Justice Anthony Kennedy's majority opinion in Lawrence v. Texas, the gay rights decision that overturned Bowers v. Hardwick, the 1986 precedent that affirmed the power of state governments to prohibit homosexual conduct. Bowers "was not correct when it was decided," Kennedy declared, "and it is not correct today."

To be sure, stare decisis is a venerable doctrine in American law. But it is not the only venerable doctrine. As Justice Clarence Thomas once observed, "stare decisis is only an 'adjunct' of our duty as judges to decide by our best lights what the Constitution means." Put differently, in a clash between legal precedent and constitutional text, shouldn't judges put the Constitution first?

NEXT: Will Charter Schools Ever Get Off the Ground in Virginia?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Two words:
    Dred
    Scott

    1. And also:
      Plessy
      Ferguson

      1. Is Plessy the guy who owned the CVS or something?

      2. Dred Scott was never overruled. It was repealed by Constitutional amendment.

        And strictly speaking, Plessy v. Ferguson was not expressly overruled, just “questioned.”

        1. And in answer to the question ‘when should precedent be overrulled’, I answered Dred Scott. But thanks for the ‘clarification’.

          1. I thought you were responding to Breyer’s suggestion that overruling precedent was somehow unheard of.

        2. You can’t “repeal” a decision by amending the constitution. At best, it could be said that it changed that determined the case in Dred Scott, so that decision was no longer applicable to current law. For what it’s worth, I don’t really see it in that case. If the constitution was rightly read in Dred Scott as conveying no citizenship to blackamoors that got here as slaves nor to their descendants, the amendment doesn’t really say anything to affect the relevant language. In fact, it rather seems to speak to a different matter altogether. At the same time, I think it’s arguable that Dred Scott was in error to begin with, before amendment.

      3. More to the point, Slaughterhouse.

  2. When Should the Supreme Court Overturn One of Its Own Precedents?

    When the precedent is wrong and unconstitutional? Just a guess.

    1. ^This. But realistically, that’s only going to happen once everyone who was on SCOTUS at the time the bad decision was issued is dead. Unless you get a situation like when Powell started speaking after retirement about how he was wrong on Bowers v. Hardwick (Georgia privacy case which upheld sodomy laws). Would that more justices had the integrity of Powell.

    2. Unconstitutional is in the eye of the beholder.

  3. “stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.”

    Every word in this sentence feels racist.

    1. Of course they don’t really need to decide what the constitution means; it’s meaning is pretty plain. They should be deciding only whether laws and government actions fall within the very limited authority granted by the constitution.

      1. Of course they don’t really need to decide what the constitution means; it’s meaning is pretty plain.

        Dude, the Constitution is really old and faded. You can hardly even make out half the words these days. And it’s in this really flowery script that is just so hard on the eyes. Who knows what that thing says anymore? Only a committee of lawyers can figure it out.

        1. It was written like 100 years ago and is hard to understand. Ezra Klein told me this and therefore it must be true.

        2. You’d need a fucking HOSPITAL of lawyers to uncover the original meaning now.

  4. I’m sure Kagan would agree that anti-sodomy laws should still be on the books, and that the Heller decision should be vigorously reinforced, since she’s so keen on upholding precedent and all. I’m also sure Roberts, being so committed to the democratic process above that of constitutional compatibility, would happily defer to the legislature if some Jim Crow laws were passed by referendum. So principled these Justices are.

    1. defer to the electorate*

    2. I’m sure that she doesn’t want to go against precedent because she doesn’t want future justices to overturn decisions she supported. Same reason why legislators rarely repeal legislation. They want to leave their mark and have it be there forever.

      1. That’s true right up until the moment she mounts a lefty hobby horse and then precedent be damned.

        1. *barfs at the image of Kagan mounting something*

          1. You barf out of your penis? Who knew?

            1. That… was uncalled for.

              There is some sense of decorum around here, you sad sick savage.

              Narrowed gaze, indeed.

  5. Justice Stephen Breyer raised a similar objection to the teachers’ case. “What about the Eighth Amendment?” he asked Carvin. “There’s an individual right, some think, perhaps, against capital punishment. The Court has consistently ruled against it. So I guess if that’s ever considered again, under your view, the Court would give no weight to stare decisis.”

    No, jackass. You can give stare decisis some weight and still find it short of compelling in your decision making.

  6. I would say that precedents should be presumed correct unless proven incorrect.

    Holding to precedent too rigidly would be unfair not only to the poor Constitution, but to the litigants, who probably didn’t have a voice in the prior decision.

    1. So always be open to the possibility that your last decision was – gasp! wrong.

    2. No, precedent has no value, whatsoever. The arguments that led to that precedent are certainly relevant and should be considered, but who cares what opinion dominated nine robes 80 years ago? That decision may be law, but laws are frequently wrong. The burden for change shouldn’t be higher just because other, older people made the same mistake.

      1. Ok, I somewhat misunderstood your statement. On a second read-through I think we’re in agreement. Cheers.

        1. If there’s still some serious arguments for the precedent, I’d say follow it. But if you’re convinced it’s wrong, ditch it.

          At least give the supporters of the precedent a chance to make their arguments – I wouldn’t agree with their overruling a precedent without hearing the best that can be said in its favor.

          But if the best isn’t good enough, into the dustbin of history the precedent should go.

          1. See below. The interesting question is how you balance society’s reliance on the law/precedent against your conclusion that its wrong.

            1. I’d say that the burden is to show that the prior decision was wrongly decided. Presume it as correct, but once it’s proven wrong (by whatever standard of proof), then overrule it.

              If a court can hold to an admittedly wrong precedent in order to benefit society, then why not cut to the chase and say they can knowingly make a wrong decision in the first place if it has enough social benefit.

  7. Stare Decisis in my opinion has become a legal cop-out. In my limited view, it’s raised 100% of the time when someone has a good argument against a thing, but the government has a ‘compelling’ interest in keeping that thing and thus points to decisis as its reasoning.

    It’s my opinion that if you didn’t raise a good argument, the court wouldn’t have to fall back on stare decisis. Your argument would fail due to obvious lack of merit.

  8. Bad precedent should be jettissoned as soon as possible to avoid maximizing the injustice out of fear of admitting “We got it wrong”.

  9. Adherence to precedent is only legitimate if you believe men infallible and incorruptible.

    Otherwise it’s simply a tool to amend the constitution without using Article 5.

    1. I’m pretty sure the justices derive supernatural protection from error through an unbroken chain of apostolic succession back to Jesus himself.

  10. “Justice Stephen Breyer raised a similar objection to the teachers’ case. “What about the Eighth Amendment?” he asked Carvin. “There’s an individual right, some think, perhaps, against capital punishment. The Court has consistently ruled against it.”

    Of course Breyer forgot to mention that Constitution explicitly mentions capital punishment.

    1. Yeah, like a hundred years ago. Get with the times, man!

      1. And by “get with the times,” I mean read the New York *Times* to see what you should do.

  11. There is also the reality of the facts on the ground.

    In 1977, the question was one of free riders who benefited from the benefits negotiated by the union on behalf of the employee.

    In 2016, it’s arguable that the union no longer focusses on those benefits. Now it is a question of compulsory speech.

    1. I dunno, I think the core of the argument is that by their very nature negotiations of benefits for public employees are fraught with political machinations. The “not focused on those benefits” argument is probably true, but that problem can be ameliorated by the current scheme under which coerced members pay only a “negotiation fee” or whatever they call it.

      1. Right.

        But now you’re getting to the question of remedy.

        In 1977, it was probably assumed that the harm to the employee was trivial in comparison to the value.

        Later, it was decided that there are separate questions of negotiating benefits vs political advocacy. I think they originally let people opt out of the political advocacy, and then decided that this wasn’t working so they let people opt out entirely. (I didn’t bother to google that for accuracy.)

        Now, the question will be to what it extent it is even possible for a teacher to be allowed to opt out of “just the politics.” I think if SCOTUS were convinced that the union could adequately account for agency fees and political contributions, then they would limit the opt out to politics. But, if they agree with the argument that it is all politics, then they will feel compelled (or 5 of them will) to allow complete opt out.

        So, I don’t think the logic has really changed. It’s the scale of the remedy.

        1. Edit. They let private sector employees to opt out.

  12. I would much rather have no judicial precedents at all. Decide everything from scratch. Precedents like Slaughterhouse get locked in far too long and never revisited for shame of losing face. They also make lawyering way too expensive, what with all the dusty book research, and turn justice into a contest of bank accounts vs unlimited taxes.

    1. You’d essentially slit the throat of the Common Law and leave everything up to statutory edicts. Law should be discovered, not invented. The value of precedent is consistency in the application of justice. The only time precedent should be overturned, is when that precedent is consistently producing injustice.

      1. I would start with one overriding principle, which I call self-control: the right, and duty, to control self and property, regardless of harm to self or distaste of others.

        The only crime is when self-control clashes, whether people on a crowded sidewalk or murder. Redress should consist of starting from self-control and deciding restitution.

        I would have no laws whatsoever. But contracts are fine and dandy, and violation of contract terms is just another violation of self-control.

        I despise judge-made law, and I especially despise it as precedent. It locks in bad decisions made under different circumstances, and fills law libraries with dusty precedent which give far too much power to the money required to hire researchers. That is not justice.

        1. I despise judge-made law, and I especially despise it as precedent.

          Common law precedent comprises the best parts of the Constitution and the judicial system in general. Concepts like ex post facto, habeas corpus, double jeopardy and mens rea, to name a few, are all derived from the common law. Many of these were enshrined in the Constitution so that statutes couldn’t easily erode rights and liberties in short order.

          There is no consistency in common law when so much of it depends on how much money you have to find precedent[…]I would have no laws whatsoever. But contracts are fine and dandy, and violation of contract terms is just another violation of self-control.

          There is a lot of consistency, orders of magnitude more consistency than you get from statutory law. Without common law you wouldn’t be able to consistently interpret a contract. With no common definitions of the principles and concepts in contract law, you would get wildly different rulings when appearing before Judge Judy as opposed to Judge Brown and without being able to cite the inconsistency between those rulings, you’d have no recourse for a new proceeding. This is why contract law is largely dependent on common law and if we were wholly reliant on the whims of legislatures and democratic majorities we would have no semblance of a “free market” and no ostensible “rights” since such things could only be recognized by statutory declaration.

          1. That makes no sense. How can judges be so wise on the one hand that judge-made law should stand for centuries, but so unreliable on the other hand that they cannot come to the same conclusions in individual cases?

            Judge-made precedent has the major defects of (1) being so expensive to research that bank accounts decide cases; (2) locking in bad decisions for ages; and (3) allowing judges to apply one decision to other “similar” decisions, where “similarity” is strictly in the eye of the beholder, regardless of changed parties, locations, and times.

            Please address those concerns.

            1. You’re attacking a straw man. The rule isn’t “once a single judge decides something, everyone everywhere is bound by it forever” and never has been.

              Please address those concerns.

              1. Most precedent can be researched for free, by anyone. For example, if Congress passed a law mandating that all Americans must belong to a mosque, finding the precedent that says that is unconstitutional is as easy as browsing Wikipedia. Overturning the law democratically would cost hundreds of millions of dollars at a minimum, and of course be subject to voters’ whims. The Constitution exists largely to protect freedom *from* voters.

              2+3. You’re claiming both that judges can decide as they please and that they are locked in to earlier decisions “for ages”. Make up your mind. Also, explain how that’s any different from what you get with legislatures.

              1. How long does it take to search precedent, and how much does access itself cost? The idea that any non-lawyer can even understand past cases, let alone know how to search decades and centuries of them, is ridiculous.

                I would rather have individual cases be decided badly and stop right there, or be overturned on appeal, than have one bad decision stick around for decades and centuries. See Slaughterhouse for a prime example. That alone shoudl be enough reason for throwing out precedence.

                1. How long does it take to search precedent, and how much does access itself cost? The idea that any non-lawyer can even understand past cases, let alone know how to search decades and centuries of them, is ridiculous.

                  And it’s not ridiculous that a company needs to hire a veritable army of lawyers to figure out how purchase an employee healthcare plan to comply with the latest new law?

                  I would rather have individual cases be decided badly and stop right there, or be overturned on appeal, than have one bad decision stick around for decades and centuries. See Slaughterhouse for a prime example. That alone shoudl be enough reason for throwing out precedence.

                  Every objection you’ve raised could not only be equally applied as an objection to statutory law, but would apply even more so to statutes. Statutory law under performs in every regard with the exception of it’s ability to expand state power in a flash.

            2. How can judges be so wise on the one hand that judge-made law should stand for centuries,

              Generally speaking it only stands for centuries when it has some redeeming quality like being at least in part consistent with rulings in similar cases. Judges made all kinds of shitty decisions 500 years ago that was not bequeathed to people living living 400 years ago because the decisions could not be consistently applied or they did not comport with other principles of justice that did have some widespread consensus through space and time about their validity.

              but so unreliable on the other hand that they cannot come to the same conclusions in individual cases?

              In these instances, conflicts are ostensibly addressed by higher courts or other courts and if they’re inconsistent, over a long enough timeline (free of statutory perversions) the bad precedents are weeded out.

            3. Judge-made precedent has the major defects of (1) being so expensive to research that bank accounts decide cases;

              There’s no such thing as a legal system that’s worth it’s salt that is not incredibly complex. It must be at least as complex as the nature and scope of human interaction is or it will be wholly incapable of dispute resolution. You what makes it more unnecessarily complex? Statutes. The financial burden of applying common law is much less than statutory law. How many new pages of regulations and statutes were created this year? How much wealth was destroyed, how much liberty stolen, how much injustice produced as a result of the ever expanding body statutory law from year to year? It’s nearly incalculable.

              (2) locking in bad decisions for ages;

              It more often and more easily locks in good law, since if a bad law is to survive the ages it must be somewhat consistent with other legal principles to form a body of law. Statutory law, when it’s inconsistent with other statutory law (notwithstanding the constitution), does not self-destruct or falter under the weight of it’s inconsistency. Instead we have to rely on wise legislatures to repeal it. Are you going to similarly argue that bad statutes don’t survive the ages?

              1. Only a lawyer could think complexity is the hallmark of a good legal system.

                1. Only a lawyer could think complexity is the hallmark of a good legal system.

                  All the best responses to this are too insulting for my tastes. So I’ll just reiterate, a legal system must be at least as complex as the nature and scope of human interaction, the thing for which it is differentiating acceptable from unacceptable acts. And you’re kidding yourself if you think statutory law adds simplicity to the legal system.

            4. (3) allowing judges to apply one decision to other “similar” decisions, where “similarity” is strictly in the eye of the beholder, regardless of changed parties, locations, and times.

              All justice is in the eye of the beholder, the entire point of precedent is to bind judicial discretion within a certain range of variability. And I have no clue where you get “regardless of changed parties, locations, and times”, with emphasis on the ‘regardless’. Ostensibly all regard is paid to whether or not precedent should apply. If a precedent doesn’t apply to a situation you need argue for why it doesn’t. That said,

              changed parties

              If it’s wrong for Bob to steal from Alice and Bob is convicted of the theft. Should it remain an open question whether or not it’s wrong for Cathy to steal from Dave?

              [changed] locations

              If it’s wrong for Bob to steal from Alice’s home, would it remain an open question if Bob had robbed her hotel room?

              [changed] times

              If it’s wrong for Bob to steal from Alice on Tuesday, is it an open question whether or not it’s wrong for Bob to steal from her on Wednesday? Or a Tuesday of the following year? Or the following decade?

      2. There is no consistency in common law when so much of it depends on how much money you have to find precedent, and when precedent itself applies one finding to different circumstances in different places at different times.

        1. I’ve been following this debate, and it’s clear to me that you don’t really understand what the common law was. (Note the past tense: we’ve largely abandoned it in this country, as it has almost completely been supplanted by statutory law.) The common law created a body of law which, while it permitted evolution over time to reflect societal changes, nonetheless provided sufficient stability that people could basically know and understand what the rules were. That has been utterly overturned by statutory law, which is subject to the whims of legislatures and can change at a moment’s notice.

          I blame Blackstone, who turned Coke’s wisdom on its head. But now we’re delving deep into legal history which is really beyond the scope of this discussion.

          1. Reading Laird’s post, it makes me think that if one accepts that our Constitution is designed around the concept of checks and balances, thena living court SCOTUS remains the last vestige of common law, i.e., taming legislative law and simply reflecting the sense of the time. maybe? dunno? just thinking out loud.

    2. That’s a really bad idea. If I can’t rely on precedent, how can I predict whether and how the courts will enforce my contracts etc?

      1. Are you saying that without precedent to guide them, judges would make decisions willy nilly, like rolling dice?

        Then you are saying that judges are incompetent, and you are fine with incompetent judges locking in bad decisions for years via precedent.

        If instead judges are competent, then they should come to the same decision each time, if the circumstances are the same.

        You are also claiming that circumstances, places, and times are all the same for every decision where precedent is applied. I doubt that. More likely, judges get lazy and find something similar to avoid having to apply some logical thinking from first principles.

        If your contracts are written with precedent in mind rather than first principles or even the laws themselves, then you are part of the problem which requires beaucoup bucks to get justice from researching precedent.

        1. Are you saying that without precedent to guide them, judges would make decisions willy nilly, like rolling dice?

          Yes, much much worse than now. Precedent has a function, it hasn’t built up through the eons for no reason whatsoever.

          You are also claiming that circumstances, places, and times are all the same for every decision where precedent is applied.

          I see no such thing. Where those factors differ, you make that argument in court to justify why a precedent shouldn’t even be used in arriving at a decision.

          If your contracts are written with precedent in mind rather than first principles

          First principles don’t exist until they are discovered and they cannot be applied until someone knows they exist. All sorts of principles entered the judicial system by way of precedent and we wouldn’t have the protection of almost any of the surviving first principles that are still recognized, if they had to be reinvented every time a new judge started his career.

          1. If judges are as shoddy and unreliable as you claim, then why in the world do you want to pick a few decisions and lock them in for decades and centuries?

            1. If judges are as shoddy and unreliable as you claim, then why in the world do you want to pick a few decisions and lock them in for decades and centuries?

              Where did I say judges were shoddy and unreliable? You keep telling me I said this, I don’t see it. I spoke specifically, upthread, about two specific SCOTUS judges and I spoke specifically about their penchant for picking and choosing statutes they like, as opposed to consistently applying principles in determining the validity of a statute.

        2. Then you are saying that judges are incompetent

          Ironically, your failure to understand what he’s saying *illustrates* what he’s saying. Different people can interpret the exact same sentence in different ways. Language is frequently unclear.

          A little over eighty years ago, Kurt Godel demonstrated that it is impossible for any computable axiomatic system to be both complete and consistent. You are demanding the impossible — if the law is so clear as to be immune to misinterpretation (i.e., computable and axiomatic) then it will either be restricted to only those crimes which can be objectively defined (e.g., not murder or rape) or else inconsistent in its results.

          1. Then right back at you — I am syaing that if bad decisions are going to be made, it is better to have them apply to their individual cases alone, instead of infecting other “similar” cases for decades and centuries, and only accessible to those who have the bucks to pay for researcher time and access.

            1. and only accessible to those who have the bucks to pay for researcher time and access.

              The illegality of murder came from common law. How many researchers do you need to pay in order to convince a judge of the illegality of that act? None. Where researchers come into play, is when your case is novel, either when the circumstances are rare or when there is no clear answer in a dispute because of new technology et cetera. A researcher’s task, lets say with in a case like the Napster case some years ago, would be scour the case law to find examples of someone being convicted of the theft of information without anything actually being physically taken from the ‘owner’. The lawyer’s job at that point is to convince the court that the preexisting case law proves that what Napster did was illegal.

              1. You claim above that any good legal system is complex, then bring in murder as an example of simplicity. Which is it?

                1. You claim above that any good legal system is complex, then bring in murder as an example of simplicity. Which is it?

                  I was addressing your claim that you need an army of researchers to argue a common law case. That’s not true. All the basics are so well established you don’t need researchers. And if you cared to read any further into the post you’d see that I pointed to examples where researchers actually are used, that being novel or rare circumstances or in the event of new technologies et cetera. Perhaps you could stop trying to manufacture gotchas and actually read what I wrote and respond without moving the goal post.

            2. You keep making the same silly error — claiming that a single judge’s decision is binding on everybody. This is not and never has been the case. That is not how precedent works.

              Take the precedent under discussion in this case, for example. The ruling in question was originally made by a judge, but then multiple levels of appellate courts looked at it, followed by the US Supreme Court. Aspects of the ruling have been challenged and modified over the years as well. So your position is “you can’t trust the dozens or hundreds of people who have examined this issue over the years, but you CAN trust the ONE guy who hadn’t spared a moment’s thought to the issue until it landed in his court”. That’s nonsense on stilts.

              And the notion that researching precedent is more expensive than researching statutory law is simply imbecilic. The interactions of the millions of laws on the books are beyond the ability of any one lawyer to possibly comprehend. Understanding precedent is far cheaper and easier — e.g., rather than arguing from first principles that the law applies to your situation, you can simply point to the fact that courts have already found that it does.

          2. Different people can interpret the exact same sentence in different ways. Language is frequently unclear.

            The job of a lawyer is to convince 12 people that words have no meaning.

  13. “What about the Eighth Amendment?” he asked Carvin. “There’s an individual right, some think, perhaps, against capital punishment. The Court has consistently ruled against it. So I guess if that’s ever considered again, under your view, the Court would give no weight to stare decisis.”

    Given that the death penalty is actually called out in the constitution in multiple places (treason, “deprived of life , liberty, or property without due process of law”, etc.), even ignoring stare decisis you would end up with the same result… quit conflating irrelevancies, you twit

    1. Yeah, I’m against the death penalty (in about 99.99% of situations, at least) for a lot of reasons, but it is most certainly NOT unconstitutional.

  14. “This is indefensible, but we want to keep it, so we’ll just point to what some dead people said and act like our job isn’t reviewing and revising what they said.”

    1. But what if they’re dead WHITE MEN? Progressive head explosion.

  15. Its actually a very interesting and difficult question.

    One of the principles of rule of law is that people are entitled to rely on the law. This is really what stare decisis is about: if the court has ruled one way, you are entitled to rely on it without worrying that the court will rule a different way.

    But its not absolute. Its more of a burden of proof (actually, persuasion) thing. Preserving the consistency and reliability of law is a value, which means that someone seeking to change the law (in effect) has to carry the burden. Should it be 50.1%? 80%? Its a value judgment.

    “Indefensible”? “Shocks the conscience”? Those should meet the burden. “If we were deciding this new today, we would go the other way”? Probably not, without more.

    Not having any stare decisis or precedents would, in my opinion, be a bad thing. There would be no reason to publish judicial opinions or apply them to anyone other than the parties to the case. Meaning, among other things, that every single state that didn’t license gay marriage would have to lose a case to which it was a party, meaning we would need 50 fully litigated gay marriage lawsuits, to get where we got with only one. Not a good way to do things, IMO.

    1. You’d need more than 50. Every stubborn clerk would continue to ignore the precedent and force you to sue.

      1. True. People overlook that “precedent” means that the result in this case can be applied to other similar cases (the distinction between common law and dispute resolution by, say, an arbitrator). Doing away with stare decisis is pretty much doing away with the precedential value of cases. Doing away with precedent does away with the common law.

      2. “Meaning, among other things, that every single state that didn’t license gay marriage would have to lose a case to which it was a party, meaning we would need 50 fully litigated gay marriage lawsuits, to get where we got with only one. Not a good way to do things, IMO.”

        “You’d need more than 50. Every stubborn clerk would continue to ignore the precedent and force you to sue.”

        Sounds like my kind of party!

        1. Seriously, why should we make it easy for courts to usurp power?

          1. What you call “usurp power” also goes by the name of “common law”, which is a unique institution for developing law from the bottom up, case by case, rather than through top-down edicts.

            The good news for people who prefer top-down edicts is that there’s not a lot of common law left. The legislators who you don’t want to “usurp power” from have made sure of that. And given the results, who can complain?

            1. No, I don’t think imposing SSM on the country and overturning the constitutions of a majority of states has much to do with the common law.

              “The legislators who you don’t want to “usurp power” from”

              Legislators? How about the people of a majority of the states? *There* is a “bottom up” process.*

              “given the results, who can complain?”

              Me, for one, if you’re talking about state-sponsored SSM and everything that goes with it.

              *Insert H&R snark about “bottoms.”

              1. No, I don’t think imposing SSM on the country and overturning the constitutions of a majority of states has much to do with the common law.

                To be fair, the US Constitution and by extension the many state constitutions predicated on it’s example, are not only full of codified common law, but cannot be properly understood without some understanding of the common law.

                Legislators? How about the people of a majority of the states? *There* is a “bottom up” process.*

                Yes and democracy is a pretty damn awful institution upon which to predicate your legal system. And it’s not even democracy at work per se, democracy is just the moral cover necessary for legislators to declare their top down edicts masquerading as valid law. And worse than some king arbitrarily declaring laws since a king doesn’t have the moral cover that democracy provides in convincing people that their body of statutory law is moral because it comes from “the people.”

                1. If we’re going to invoke the common law in a discussion of gay marriage, which side would have the advantage – my side or yours?

                  I’m not a democrat (small-d). We’re not a democracy but a republic.

                  The people and their representatives have only limited powers.

                  So do the courts.

                  So which side, in this case, was usurping power?

                  I say it was the courts.

                  The people of a majority of the states were, in my view, simply defending a pre-existing institution, not simply pulling laws out of their butts like the courts did.

                  1. The SCOTUS might very well have gone beyond their scope on same-sex marriage. I’m not claiming that no judge ever goes beyond his jurisdiction. What I am saying that virtually every single statute passed by a legislature is an usurpation of power unless it’s a codification of a discovered principle of justice. Principles of justice are very rarely consulted in the invention of new laws by legislators and bureaucrats.

                    1. Oh, yes, on this I would certainly agree.

                  2. The answer to your question is that the states and Congress usurped power by passing laws regulating marriage in the first place. Deciding who may and may not marry fell well outside the legitimate purposes of government.

                    As for the courts — per the Constitution, the US supreme court is, well, supreme. It has no restrictions on the laws it may review. The only way for the Supreme Court to “usurp power” would be to issue rulings unrelated to a legal case before it. If one court says “gays are forbidden to marry” and another says “gays have a right to marry”, they have not merely the power but the duty to say which view is correct.

          2. Seriously, why should we make it easy for courts to usurp power?

            Why should we allow legislators to usurp power? Passing a law that restricts individual rights is just as wrong as issuing a ruling from the bench that restricts individual rights.

            1. We seem to have a difference of opinion.

              My view is that attacks on true marriage are also attacks on civil liberties, and if I may say so, there’s a lot of evidence in my favor.

              So I’m not persuaded that government-sponsored SSM is a civil right.

              1. and if I may say so, there’s a lot of evidence in my favor

                You should watch “Inside Out”. There’s a cute scene about how easily people get their facts and opinions confused.

  16. Written by lawyers to support lawyers.

    SHOCKED, I am.

  17. Didn’t this court just do so in the FL death penalty case? I mean they literally upheld FL’s process last session and found against it in this session.

  18. Two elements of law: 1) social order (power + certainty/clarity/stability/predictability); 2) justice (value + equality).

    Stare decisis (SD) falls under 1). Interestingly enough, if SD defends a doctrine that is at odds with other doctrines, and which thus forms an internal contradiction within a legal order (a system of thought), this causes social instability, disorder. That speaks in favor of disregarding stare decisis, in order to reduce contradiction and to enhance social order, all under 1).

    1) can clash with 2): ius strictum versus ius aequum.

    If the doctrine in question is at odds with the correct interpretation of the constitution, there’ll likely be present and future conflicts with other doctrines derived from the constitution. That speaks for disregarding SD. At the same time, the doctrine will be at odds with the values set by the constitution. That too speaks for disregarding SD. The matter of equality is less clear. It is part of the problem of doctrinal conflict (conflict/inconsistency as inequality), which strengthens the idea to disregard. But it also mean deciding future cases differently than past cases, which means unequal treatment of equal matters.

  19. When it’s wrong.

  20. Seems like the justice system would be rather uncomplicated in libertopia.

    Set up a justice system that revolved around the following premises:

    1. A person may do as they choose, provided they don’t infringe upon the rights of others.
    2. The only legitimate function of government is to protect the rights of the individual.

    The criminal system need not be complicated and would only apply to a handful of acts.

    Murder
    Assault
    Theft
    Trespass
    (am I missing any?)

    If these happen, you call a cop, they investigate and if they have enough evidence, they take it to trial.

    Everything else is civil. You convince 12 people you were aggressed against, you win. Loser pays.

    I see no need to invoke precedent, as the only rules allowed must fall under 1&2 above. Every situation is different, so punishments are at the discretion of the jurors based upon the circs of the case. The system incentivises people who avoid putting themselves in positions where they might violate the rights of another. The system incentivises working it out without legal involvement.

    It seems to me, that the only reason to complicate it any more than that is to enrich lawyers and politicians.

    I’m brainstorming…where does this fall short?

    1. Assault (includes murder, rape and all other forms of assault)
      Theft (would include trespass, as that deprives the owner of the use of his property)
      Fraud (I could see including this with theft)
      Deprivation of rights under cover of government authority (as an add-on to theft, fraud and assault)

      1. I would add kidnapping and false imprisonment, though they arguably could fall under one of the aforementioned categories

      2. Agreed. Murder should fall under assault. Fraud is theft. Not sure trespass is theft, but I see the connection. Point being, complicating matters only works to the advantage of lawyers and politicians. It certainly doesn’t benefit the people. The only legal standard in such a society is did you or did you not harm another. If so, you are susceptible to punishment, damages or both.

    2. The criminal system need not be complicated and would only apply to a handful of acts.

      Murder
      Assault
      Theft
      Trespass
      (am I missing any?)

      Those things were all illegal under common law. The broad expansion of law you describe came to us through statutes. This point actually works against your case that precedent is evil.

      1. This point actually works against your case that precedent is evil.

        Explain how precedent is necessary to cover any of the above in the framework I’ve provided?

        They are criminal as they should probably be punished regardless of the wishes of the aggressee. We could argue about that, in favor to either direction and I could be convinced either way. But I don’t see how precedent has any bearing on it given my framework.

        1. Explain how precedent is necessary to cover any of the above in the framework I’ve provided?

          Those things were all illegal under common law.

          i.e. you don’t need statutes to cover the basics. Even the jury you mentioned, is a creation of the common law, not a statute.

          But I don’t see how precedent has any bearing on it given my framework.

          The broad expansion of law you describe came to us through statutes.

          Precedent helps to bind the hands of judges from overstepping. Statutory law has virtually nothing to bind it. I’m not claiming precedent is infallible, the government courts hardly ever want to step on the toes of their teammates in the legislature. I’m saying that precedent has a value and a function, statutory law on the other hand is as arbitrary and capricious as law can be.

    3. I’m brainstorming…where does this fall short?

      It falls short in that it is impossible to write a law against, e.g., murder, that will actually cover all forms of murder while excluding all forms of non-murder. You can either allow for judicial interpretation, or accept that your “libertarian justice system” will inherently fail to uphold basic libertarian principles.

      And if you allow for judicial interpretation, the only rational thing to do is allow for precedent — all precedent is, after all, is judicial interpretation that has been peer reviewed and publicized.

  21. I will point out that all of this is predicated on a prior overturning the precedent of the Interstate Commerce Clause meaning that the federal government only has power to regulate actual interstate transactions – not anything that is claimed to “have an affect” on interstate commerce.

    So if Kagan doesn’t like overturning precedents, we can start with reversing that one.

    1. Our precedents are sacred, yours are negotiable.

      Didn’t they teach you that at that Louisville law school?

  22. Put the Constitution first?

    LULZ. LOL. Ha.

  23. Why?
    For the same reason as why they overturned Dred Scott, and Plessy, ….
    because they were wrong!

    1. Separate but equal (SBE), outline what’s wrong about that in principle. Note that Brown is a matter of compelled association (and can be read as an application of SBE).

      1. The most obviously wrong thing about “separate but equal” is that it is logically impossible. You cannot arbitrarily divide people into groups and then say they are equal in the eyes of the law.

        1. Is it “arbitrary” to divide people into two groups, based on actual traits, and to attach two different legal consequences? For example, ill people receive USD 20, healthy people don’t receive any money? Does that constitute “inequality in the eyes of the law”?

Please to post comments

Comments are closed.