Political hypocrisy is nothing new. A week ago, Barack Obama was speaking to religious organization about speakers who speak to religious organizations. When I search for ‘hypocritical’ in my RSS reader, I get a dozen hits ranging from an otherwise unimportant Bishop claiming that Giuliani’s stance on abortion is hypocritical to a ThinkProgress article calling out President Bush for doing something hypocritical for the 83rd time today.

Judicial hypocrisy is also nothing new. To suggest that the members of the Supreme Court have simply been hypocritical is to suggest that they have merely failed to realize that they are contradicting themselves. I am not that naive. The members of the conservative block, and to a lesser degree the liberal block as well, have cheapened the notion of adhering to precedent that was created long before they ever donned their now ubiquitous black robes.

Lets take a look at the ever-angry conservative block. Just today, the ever-wise Justice Kennedy remarked in Leegin that:

Stare decisis does not compel continued adherence to the per se rule here.

In Hein a few days ago, Justice Scalia’s concurrence included this important phrase:

Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here…I can think of few cases less warranting of stare decisis respect. It is time -it is past time- to call an end. Flast should be overruled.

Since he prefaced his wildly irresponsible suggestion with a logical clause, I’ll excuse Justice Scalia for this infraction of reasonable Constitutional analysis. Lets give him another shot. He has a few words of wisdom for us laymen in Wisconsin Right to Life:

Which brings me to the question of stare decisis. “Stare decisis is not an inexorable command” or “‘a mechanical formula of adherence to the latest decision.’” Payne v. Tennessee, 501 U. S. 808, 828 (1991) (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)). It is instead “‘a principle of policy,’” Payne, supra, at 828, and this Court has a “considered practice” not to apply that principle of policy “as rigidly in constitutional as in nonconstitutional cases.”…Overruling a constitutional case decided just a few years earlier is far from unprecedented.

We all know that Justice Scalia is old, but the 96 year-old precedent he overturned today in Leegin can hardly be considered ‘just a few years ago.’ Opps! He goes on:

Stare decisis considerations carry little weight when an erroneous “governing decisio[n]” has created an “unworkable” legal regime.

In simpler terms: If you don’t like a policy, it doesn’t fall under Stare Decisis. Heavens! This Constitutional Law thing is super easy! All of this would be okay if the Justices never said they were big fans of everyone’s favorite Law 101 term. But they did…

Antonin gets upset with the liberal wing of the court in Lawrence v. Texas when they don’t adhere to his stare decisis:

To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.

Justice Thomas committed the stare decisis equivalent of grand larceny this week when he suggested in Hein that we totally get rid of taxpayer standing. I agree with him in judgement but not in method. He called out Justice Breyer’s interpretation of stare decisis:

The dissent’s appeal to stare decisis is particularly ironic in light of its apparent willingness to depart from these precedents

Ultimately, I am absolutely fed up with the court’s willingness to cheapen the notion of adhering to precedent. At times, members of the court seem to find it within themselves to subscribe to an interpretation of the law that is bigger than them and the results can be spectacular. I wrote in May (what seems like ages ago) about an instance in which Justice Scalia stuck to stare decisis like glue. In an odd turn of events, Justice Scalia ruled in that case on the same side as Justices Ginsburg and Breyer. Isn’t it cute when they get along?

As Anthony reminded us, ‘Focus on the good times.’ In this case, its hard, because there are so many bad times. The court, this term more than most, has completely butchered precedent in a way that makes me noxious. Next year, I will be collecting data on which opinions involve precedent reversals and which Justices are suggesting that change. I think it might be in vain to go back and look through this years cases, but off the top of my head, either the majority or minority blatantly asked for the reversal of precedent in light of stare decisis in Leegin, Hein, FEC v. WRTL, United Haulers, and Panetti. I’m curious to see how the Court fairs next term.

2 Responses to “The In Vogue Word Of The Day: Stare Decisis”

  1. 1 A.

    Stare decisis is for judges too stupid to interpret the CONSTITUTION and the federal laws. If there is no mandate under the Constitution or federal law to follow it, it need not even be a consideration in courts. It makes so little sense that it ought to be discarded as a legal principle in this country. It has NO PLACE in the legal system. The court should always use only the Constitution and/or federal law as standards by which to judge cases. NOTHING ELSE!

    I would argue the whole concept of stare decisis is unconcstitutional. Judges should never ever be allowed to set it or follow it. By setting it, they make law; by following it, they do not use the Constitution or federal law to which they are bound.

    The concept needs to be tossed in the judicial system. It’s time for radical and sudden reform in the legal system. Cases ought to be decided one at a time. If it means a drastic departure from what people are used to, too bad. That’s one reason precedent should never be set in the first place!

    Nothing angers me more about this nation than its acceptance of stare decisis!

  2. 2 jonathan mensah


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