Judges & Precedent By Betsy Newmark

The Christian Science Monitor has an article about the importance that a nominee’s attitude towards following stare decisis or precedent will have in the nomination hearings.

Upholding precedent fosters stability and predictability in the law. And it enhances the legitimacy of the court by demonstrating to the nation that the justices themselves accept and respect the court’s own opinions.

On the other hand, if the high court adhered strictly to precedent, it would be unable to correct mistakes in constitutional interpretation, and future interpretation would only perpetuate the errors. For example, Plessy v. Ferguson, the 1896 case upholding “separate but equal” racial segregation, would have continued as the law of the land had the Supreme Court not overruled it in the 1954 landmark decision Brown v. Board of Education.

Stare decisis means different things to different jurists. Some are extremely reluctant to overrule precedent, while others place a higher priority on correcting what they view as fundamental errors in constitutional interpretation by the high court. Still others seem ready to invoke stare decisis to protect rulings they favor, but not those they oppose.

I know that for some, adherence to stare decisis is codetalk for upholding Roe v. Wade. I’m afraid that, for many jurists and observers, respecting precedent really means respecting the precedents I like and not the ones I dislike. The article cites the classic example of Brown v. Board of Education, but more recently, we have seen the Justices reverse the 1986 Bowers v. Hardwick decision concerning gay rights. Presumably that is an overturning of precedent that those worried about overturning Roe v. Wade would have approved. I’m sure that lawyers could come up with other examples of overturning precedents that have pleased either side of the ideological spectrum. Unlike Nancy Pelosi most people don’t regard a Supreme Court decision “as almost as if God has spoken” so why should any potential justice be eliminated just because he or she does or does not think that respecting precedent is essential in deciding cases? You can’t argue that the age of a precedent makes it inviolable since Plessy was 58 years old when it was overturned. If a precedent is bad, shouldn’t it be overturned? And different people will view different precedents as worth upholding or not.

This content was used with the permission of Betsy’s Page.

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