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Power and precedent


For a long time, the standard right wing judicial nominee dodge regarding Roe v. Wade was that the nominee considered it “settled law.”

What is this phrase supposed to mean? It’s an implicit reference to what lawyers call stare decisis, which is the Latin phrase for the doctrine of precedent. What is the doctrine of precedent? (These turtles are going to keep stacking up btw).

It is that a court of superior jurisdiction should follow the existing legal rules that it has announced, unless there’s a really good reason not to. How good? The answer to that question is one of the mysterious matters of situation sense that by its nature isn’t amenable to formal definition. (There are a lot things like this in any legal system. See for example the formal [sic] definition of “beyond a reasonable doubt.”)

Now stare decisis is on its face an odd doctrine from the standpoint of what might be called scientific reasoning, or rational bureaucratic policy making, because the doctrine has content only if it means that a court will continue to enforce interpretations of the relevant legal materials that the court believes are mistaken. If this were not the case, the doctrine would be completely empty: a doctrine of precedent that directed courts to continue to apply their previous decisions only if those decisions were correct in the first instance would not be a doctrine of precedent at all.

The justifications for stare decisis are of two kinds: formalistic and pragmatic.

The formalistic justification is that’s just how our legal system works, so objecting to stare decisis on principle is like objecting to the fact that the batter in baseball gets three strikes. You could argue that the batter should get two or four (five is right out), but the formalistic response would be, “that’s not baseball.” Of course a potential response to that is OK let’s play another game that’s exactly like baseball except the batter gets four strikes and call this new game baseball. The formalistic response to this is “shut up.”

The pragmatic justification for stare decisis is more substantive. That justification is that stability and predictability are important social values, that often override what would be the appropriate legal interpretation of the relevant materials if not for the reliance interest that society has in maintaining those values. How often? Well that takes is back to our friendly turtle Situation Sense. This is one of those things that as a judge you are just supposed to “know,” in some inchoate undefinable way.

This is a system that actually works well in a sufficiently homogenous society, in which the legal interpreters basically share the same underlying world view. In a more heterogenous society, it doesn’t work very well at all, for what should be extremely obvious reasons, although a remarkable number of people manage to graduate from law school, practice law, and become judges, without ever coming to appreciate any of this.

I suggest that in a society such as ours, having life tenured judges, and especially Supreme Court justices, who get to impose their views of what the proper balance is between various social and political values, while being subject to no meaningful social or political censure or control, is absurd. It’s even more absurd when you consider that the process for the selection of these justices is both inherently undemocratic (the presidency and especially the Senate being increasingly undemocratic institutions), and bizarrely random, depending as it does on the whims of individual justices and the vagaries of actuarial chance.

Under these conditions, the Supreme Court has basically unlimited power to abuse its discretion in regard to inserting itself into American political life, and for the last 21 years now it has been abusing that discretion in remarkably egregious ways. It’s an institution that deserves no respect because it has forfeited its right to any.

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