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Justice Thomas on Stare Decisis:
Jan Crawford Greenburg has a fascinating post at her Legalities blog summarizing an interview with Justice Thomas about his views on stare decisis. Unsurprisingly, Thomas's views seem quite different from the caricatures often presented by popular commentators:
  Thomas says [claims that he does not believe in stare decisis are] an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution.
  But there's no question, he says, he's much more willing to go back to the precedent and reexamine it.
  "When you get a case, you have the last decision in the line. That's what's on your desk," Thomas says. "The last decision in the line is like a caboose on a train. Let's go from the caboose all the way up to the engine, and see what really went on, and let's think it all through.
  "You might get up to the caboose and find out: Oh, there's nobody in the engine," Thomas continues. "You say, 'There's nobody driving the train. What happened? Where did we go wrong? Maybe we're headed in the wrong direction. Let's think it through.'"
  . . . .
  Thomas says he believes in stare decisis, especially in the statutory cases. If it's a choice between precedent and what he considers a correct reading of the Constitution, though, he's more willing to go to the Constitution. That's not "radical," he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error. . . ..
  That's not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.
  In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say "no more."
So much for the Constitution in Exile.
Constitutional Crisis (mail):
This is nothing new, that Justice Thomas believes himself to be faithfully applying principles of stare decisis:
I do not think that judges should assume, simply because he or she -- judges should assume, simply because they disagree with a particular case, that were operating as though there was no prior case law or there were no precedent and feel free to act as though they're not in any way controlled or restrained or constrained by prior case law.

My sentiments, without expressing a particular judgment on that case, my sentiments would be toward a preference for recognizing that there is significant weight to be given to existing case law and that the burden is on the judge who wants to change that precedent, to not only show why it's wrong but why stare decisis should not apply.
Testimony of Judge Thomas, Senate Confirmation Hearings, Morning Session, September 16, 1991 (Link.) The issue is whether, in fact, Justice Thomas adequately and validly provides reasons for his disagreement with precedent when he indicates he would overturn it.

By the way, whether or not he realizes it, his "there's nobody in the engine" reference in this context nicely evokes the poem To Elsie, bt William Carlos Williams. Maybe Justice Thomas is more of a postmodernist than we give him credit for being.
10.8.2007 7:23pm
Markusha (mail):
Orin,

While we disagree politically, I generally much enjoy your posts. However, it seems to me that in this post, your sense of fairness is clouded by your admiration of Justice Thomas. For example, you state that:

Thomas's views seem quite different from the caricatures often presented by popular commentators:
Thomas says [claims that he does not believe in stare decisis are] an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution.

But you fail to mention that, in this instance, "the popular commentator" whose words you replaced with the brackets is...Scalia. Do you really think it's fair?

Now, it's true that these claims are often advanced by liberal jurists. However, the fact that they are supported by Thomas's most admired Justice lends them some credence which you probably wish they did not have.
10.8.2007 7:26pm
Steven:
Read the quoted passage closely. I realize Jan Greenburg isn't the world's best writer. But seriously...do those paragraphs actually say anything other than Thomas believes in stare decisis except when he doesn't? It's no wonder people have warped perceptions of the Court. Legal writers are more interested in the personal, the anecdotal, than the analytical.
10.8.2007 7:39pm
OrinKerr:
Markusha,

The lost sense of fairness is yours, actually, because Scalia was obviously exagerrating. Scalia has a tendency to exagerrate, as you may have noticed, especially when describing the views of people he disagrees with. Normally everyone understands this, and shrugs it off as Nino being Nino. So, for example, when Justice Scalia said that "you would have to be an idiot" to believe in a "living Constitution," no one thought that the people who believe in a living Constitution were actually severely mentally retarded. Rather, we understood it as Nino being Nino. I think we should have the same reaction when Scalia is asked to describe his differences with Justice Thomas, which was the context of his remark.
10.8.2007 7:42pm
FC:
I don't mean this as a criticism of Prof. Kerr, but those excepts have a lot of Greenburg and only a dash of Thomas.
10.8.2007 7:46pm
loki13 (mail):
OK,

While I think J. Scalia does use hyperbole, I think your example is a poor one. I have no doubt that he truly believes that anyone who believes in a living Constitution are idiots*, and he doesn't suffer them lightly (judging from his blistering dissents in a few cases).

*In the colloquial, as opposed to medical, meaning of the term. If I call you a geek, I don't mean that you bite the heads off of chickens.
10.8.2007 7:48pm
Constitutional Crisis (mail):
Steven: Not to parse your comment too closely, because I think its sentiment is basically accurate, but it's not really a question of "believ[ing] in stare decisis except when you he doesn't." It's a misnomer that stare decisis precludes overturning precedent. It just means that as a general rule, where there is a question of interpretation, the settled interpretation should prevail. Proper respect for stare decisis would not have prevented Plessy or Dred Scott from being overturned.

The real issue is when a judge indicates he would overturn settled precedent, does he provide the compelling and sound justification that requires the conclusion?
10.8.2007 7:48pm
OrinKerr:
FC,

Fair point. I am assuming that Greenburg is fairly characterizing what Thomas said, but it would have been much more helpful with more quotations of Thomas and less characterization by Greenburg so we could evaluate Thomas's views for ourselves.
10.8.2007 7:50pm
loki13 (mail):
I would have two basic questions after reading this article that I believe are unanswered:

1. My reading of various cases would make it appear that J. Thomas places less value on stare decisis than other Justices. This could be good, this could be bad, but the bigger question would be- why?

2. More importantly, how does J. Thomas choose to focus on the issues he wishes to revisit? Public use, P or I, Establishment Clause, Commerce etc. What drives him to reexmine the issues he chooses to, while leaving other issues (standing, executive power, corporations under the 14th) safely under the umbrella of stare decisis?
10.8.2007 7:58pm
Markusha (mail):
Orin,

I respectfully disagree. In your example, you bracketed Scalia's words, thus making it appear that these criticisms are coming from liberal commentators. It would not have taken much space to make it clear that in this instance, at least, the characterization of Thomas's views is coming from Scalia, however inaccurate you believe it to be.

Whether or not Scalia tends to exagerrate is a bit besides the point; my point was that it's unfair to take Scalia's words and make them appear as though they are a part of the "caricature" by liberal commentators.
10.8.2007 7:58pm
GV_:
Let me see if I can correctly put together the pieces with respect to Justice Thomas's views about stare decisis in constitutional cases. He wants to "follow the Constitution," not his own personal policy preferences when interpreting the Constitution. But when deciding whether you should follow precedent or follow the original understanding of the Constitution, you should slavishly follow precedent only when the precedent at issue is "too settled." (Or perhaps, when it's super precedent?) But what sort of legal principle justifies such a view of stare decisis? And how could such a test possibly have any content whatsoever?

Indeed, in the very same article, Thomas indicates that he would have joined Harlan in dissent in Plessy despite the fact that he would have to overturn precedents going back 60 years. He also indicates that Roe should be overturned despite the fact that it has been law now for over 40 years. Thomas has also argued that the Establishment Clause should not be incorporated, which would overturn a whole slew of cases going back about 60 years. At what point does a case become "too" settled? I don't understand how you could have any respect for stare decisis in constitutional cases and yet still want to overturn most Establishment Clause cases decided since the 1940s.

It seems to me that either (a) Thomas gives zero credence to precedent in constitutional cases (and thus you can't so quickly dismiss claims related to a supposed Constitution in exhile) or (b) he has a view of stare decisis, but will only invoke it to keep precedents that he happens to like.
10.8.2007 8:03pm
titus32:
Markusha, try clicking on the link to "the caricatures often presented" by popular commenters, which links to a post on Toobin's book. Also, notice "popular" is used--"liberal" is your invention.
10.8.2007 8:05pm
titus32:
GV, I'm afraid your criticism of Thomas on stare decisis could probably be applied to any member of the Court. All of them believe in it, all of them are willing to violate it, and none of them have ever provided an objective definition of when it is proper to overrule precedent.
10.8.2007 8:09pm
OrinKerr:
Markusha,

I am quite puzzled by your suggestion that I am mischaracterizing sources.

First, everyone knows that Scalia made this claim in the Foskett book. It's one of Scalia's most quoted lines, and it's the primary basis for all of the caricatured views that take Scalia's words literally. This is hardly a secret; in my experience, it's the general starting point for every discussion of Thomas's views of stare decisis.

I decided to bracket the words as an editing call because in my initial formulation the sentence was just too confusing and the fuller version was getting too long. When I first drafted the post, I wrote it as "Thomas says Scalia's claim [that Thomas does not believe in stare decisis] is an overstatement." But that made no sense, because I hadn't mentioned Scalia's claim. So then I tried adding the prior sentence about Foskett's book, introducing the context of Scalia's line. But I was worried the quote was becoming too long, both from the standpoint of fair use and just readability of the post. So I figured that every reader knew the source of the quote and I could focus the excerpt on Thomas's reaction to it.

To be honest, it didn't occur to me that there were readers who wouldn't know the source of the quote; it strikes me as quite odd to suggest that I had some sort of illicit plan to make it seem like it was "part of the caricature by liberal commentators."

Finally, as best I can tell, nothing in the post said anything about caricatures coming from liberals versus conservatives. I referred to "popular commentators," linking to Toobin's account where he accepted Scalia's exagerration as if it were meant literally. The point was that the caricature was common, not that it originated from one side or the other of the political spectrum (a matter which appears to be of great concern to you, so much that you are reading an illicit intent into my editing decisions).
10.8.2007 8:16pm
Justin (mail):
The question of "when do you follow stare decisis" when you don't necessarily agree with the original decision is often answered by the samae answer to "when does following stare decisis gets to my preferred outcome?"

For what it's worth - I'm not limiting this to Justice Thomas.
10.8.2007 8:26pm
MikeC&F (mail):
At what point does a case become "too" settled?

This is a great question. When precedent comes up, every Supreme Court Justice becomes a Sandra Day O'Connor. "Well, there are three thousand factors I will apply in an ad hoc basis to make it seem like I am not making things up as I go along."

Also add to your list: his dissent in the Commerce Clause case, Gonzales v. Raich; and his concurring opinion in Sabri v. United States. Wickard v. Filburn, if I remember correctly, dates back to 1937, and several thousand laws are based upon it. If the Thomas' view had become law, much of the federal criminal system would have been struck down. Literally hundreds of federal laws would have come into question. I, of course, would have welcomed this development, as it would further individual liberty; but it would have caused chaos.

However, I think the Court could overturn the Establishment Clause cases without causing any drama. It's not like there's an entire administrative or prosecutorial monster built around it. Imagine if the SEC and EPA were held to be unconstitutional under the non-delegation principle. What a mess. Congress would literally stop dead in its tracks fixing this stuff.

With school prayer, today you can't lead a prayer in school. Tomorrow you can. Today you can get an abortion, next year you can't.

The same thing with abortion. Assuming people are having unprotected sex on the reliance that they can have an abortion, the Court would simply need to stay its ruling for nine months. That way everyone who wanted to have their abortion could get it done. Granted, there are clinics whose financial solvency depends upon abortion. But it's not a large enough segment of the economy, and most of the workers have transferable skills. They would survive.

I am not saying the world would be a better place with school prayer or without abortion. I do not touch the merits of either issue! I am simply noting that allowing it would not be logistically challenging. Indeed, it would be much less costly than a systematic reexamination of the federal criminal code.

So I think under a "How much chaos?" test, abortion and school prayer are fair game.
10.8.2007 8:30pm
MikeC&F (mail):
Here is what I would like to see: Debates about stare decisis in the ERISA context. I want Supreme Court Justices to fight about the issue in a non-political context. This tells me how genuine their arguments are.

But why is it that precedent only becomes an issue in these hot-button cases like abortion and school prayer? I would love to be corrected here, and hope someone can show me some stare decisis wars going on in ERISA cases. (I did a search and came up with nill.)

Could it be that no one seems to cares about stare decisis qua stare decisis, but rather, only cares about it when it keeps them from doing something they already want to do?

And, if it is the case that no one seems to care about stare decisis except in political cases, why should we as observers take seriously any Justice's claim that "Stare decisis [matters/doesn't matter]?" Supreme Court advocates, of course, must pretend this stuff matters. But people who are just trying to figure things out need not take such claims seriously.

BTW, has anyone written a law review article that examines all of the stare decision battles that occur in the Supreme Court reports, noting the context under which these debates arise? E.g., that no one cares enough about stare decisis in ERISA cases to fight over it; but they do care enough about it in abortion cases to fight over it?

Has anyone written an article noting, say that the liberals supports stare decisis when stare decisis supports a liberal result, but oppose it when it would lead to a conservative result?

That would make for interesting reading, I think.
10.8.2007 8:44pm
Christopher Cooke (mail):
I would say that justices following stare decisis unless (1) they really really disagree with the prior precedent and (2) really don't like the result that would obtain if they followed precedent.

The difference is that some justices have a lower threshold for (1) and (2) as far as tolerating results they think are wrongly decided and with which they disagree, and this threshold varies on each issue.

The most coherent and principled explanation that I have seen is that justices should be more willing to follow stare decisis when interpreting statutes than when interpreting the constitution, because it is much easier for Congress to tell them they are wrong with statutes.
10.8.2007 8:46pm
K Parker (mail):
Congress would literally stop dead in its tracks
Mike, help me out! I'm trying to see the downside here... :-)

All joking aside, anything that reduces the size and scope of the administrative state is at least worth a look.
10.8.2007 9:34pm
Brooks Lyman (mail):
This is sort of relevant to the question of the DC gun ban case which the SC may decide to hear:

The gun control advocates claim that the SC precedents - particularly Miller - support a collective right under the Second Amendment while the "un-interpreted" Miller decision language would seem to support or imply an individual right. Of course, other decisions (generally ignored) are more definite in supporting an individual right.

Are the gun control advocates deceiving themselves or do courts sometimes make decisions based on what they think the precedents say or what "informed public opinion" says they say? In short, do we have honest judges?

Or is it possible that the SC, while agreeing that the 2nd Am. guarantees an individual right, will somehow decline to uphold the appellate court decision in Parker because they don't want to upset the apple cart of all the (unconstitutional?) gun control laws out there?
10.8.2007 9:43pm
Markusha (mail):
Orin,
After thinking some more about this, I agree with you and take back my criticism. You are probably correct that most readers would know Scalia's views of Thomas's jurisprudence. And I never accused you of illicit intentions, I just thought that it was unfair to not mention Scalia as one of the sources for the "popular commentators'". Sorry if you had an impression that I accused you of bad intentions; that's not what I meant.
Again, I much appreciate your posts.
10.8.2007 11:12pm
Passing By:
How does Thomas's statement that "he believes in stare decisis, especially in the statutory cases" lead to the conclusion "So much for the Constitution in Exile"?

In my opinion, Thomas is correct to afford greater deference to prior interpretations of statutes, as (obviously) Congress is free to correct the court's errors. Once Congress has that opportunity and chooses not to do so, it it becomes presumptuous of the Court to revisit its prior interpretation that Congress presumably found acceptable.

It's also interesting that Thomas would decline to reverse certain unspecified precedents that he deems wrongly decided because there would be a significant effect on government institutions. Thomas is implicitly stating that, but for political realities, he would cast his vote to reverse any precedent he deems incorrectly decided. He appears to be talking about interpretations of the Commerce Clause and Necessary and Proper Clause - out of what other set of cases have "so many institutions have grown"? And with due respect to the fact that Thomas will let political realities trump what he believes to be accurate interpretation of the Constitution, which proponent of the "Constitution in Exile" label has argued that those they label will not be sensitive to politics and the possibility of a societal backlash that could crush their movement if they implement it too quickly?

I largely agree with your "Constitution in Exile" posts, but this one seems to work against you.
10.8.2007 11:16pm
OrinKerr:
Markusha,

Thanks for that, and my apologies for being too harsh on my end. (In the last few weeks there has been an uptick in commenters making all sorts of suggestions that I have been arguing in bad faith, and to be honest I've been frustrated by that; I think that frustration let me to be too snippy in response to your comment, which I shouldn't have been.)

Passing by,

I was thinking of the line, "that's not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested." I tend to think that's the position allegedly taken by the Constitution in Exilers, so I saw that line as distancing Thomas from that position.
10.8.2007 11:22pm
OrinKerr:
Oh, and "passing by," check out Greenburg's post itself -- it has a bit more on this.
10.8.2007 11:23pm
David M. Nieporent (www):
Indeed, in the very same article, Thomas indicates that he would have joined Harlan in dissent in Plessy despite the fact that he would have to overturn precedents going back 60 years.
No, he didn't. (That doesn't make any sense at all; the 14th amendment was only 3 decades old at the time of Plessy.) You misread something. I think you're confusing the time between Brown and Plessy with the time before Plessy.
He also indicates that Roe should be overturned despite the fact that it has been law now for over 40 years.
No, it hasn't. Last I checked, 34 is not "over 40."
Thomas has also argued that the Establishment Clause should not be incorporated, which would overturn a whole slew of cases going back about 60 years. At what point does a case become "too" settled? I don't understand how you could have any respect for stare decisis in constitutional cases and yet still want to overturn most Establishment Clause cases decided since the 1940s.
Because there's no reliance issue with Establishment Clause cases. Plus, most judges -- even those that "respect" stare decisis -- are willing to revisit precedent when it proves to be unworkable, as much Establishment Clause jurisprudence has. Lemon test! Or is it the whatever-bothers-Sandra-Day-O'Connor test? (What will we do now that she's gone?)
10.9.2007 12:12am
Lev:

Or is it the whatever-bothers-Sandra-Day-O'Connor test? (What will we do now that she's gone?)


The Whatever-strikes-Anthony-Kennedy's-fancy-on-any-given-day test.
10.9.2007 1:24am
Matt H (mail):
It seems to me that a lot of people are forgetting that stare decisis does not mean one would never over-turn a precedent. J. Thomas would seem to be well within his prerogative to overturn precedents which he perceives to be in conflict with the Constitution. After all, he took an oath to faithfully discharge his duties under the Constitution first and then the laws of the United States.
Implicit in that oath is a demand for professional judgment so the argument is really about which standard one should use overturn precedent, not whether not J. Thomas believes in stare decisis.
10.9.2007 1:42am
arbitraryaardvark (mail) (www):
If it's a choice between precedent and what he considers a correct reading of the Constitution, though, he's more willing to go to the Constitution. That's all you need in order to have a constitution in exile movement. It doesn't require that there are currently 5 votes on the court to reinstate Lockner and overturn Wickard. More evidence: Ron Paul, an explicit constitution-restorer, is raising funds at about the same level of John McCain, a constitution-ignorer. This blog, in the past year, has addressed issues under the 1st, 2d, 3rd, 5th,and 13th amendments, each addressed to restoring some aspect of the constitution. The DC gun case explictly cites EV's scholarly work on the second amendment. If the Court takes the case, Thomas's opinion, whether in majority or dissent, is likely to be the most interesting, precisely because he's less bound by past mistakes, willing to look to the text and sort out what it means. The constitution in exile movement justifies it existence each time it gets a case heard that gives Thomas a forum, even when he's dissenting alone.
10.9.2007 3:32am
loki13 (mail):
According to other posters, we have two criteria for revisiting precedent:

1. Clear textural demands.
2. Confusing body of case law.

So... when is Thomas going to lead the movement to revisit the 11th Am. and return it to its original meaning? Anyone? Or is it okay to just be a pick and choose originalist?
10.9.2007 8:45am
NaG (mail):
These stare decisis discussions always make me roll my eyes. Those who are critical of Justice Thomas feign outrage over his willingness to overturn previous decisions, while cheering the Court's decisions to overturn Lochner, Plessy, and any one of a hundred others -- and demanding that existing precedent like Zelman be overturned. And then some astronaut argues that Wickard v. Filburn should not be overturned on the sole premise that it would have invalidated "several thousand" federal laws? Oh, I suppose the actual rationale of Wickard is unimportant now? Dear God, the federal government might lose less than one percent of its voluminous Code! Chaos!

Precedent should always be re-examined on a constitutional basis. Previous Courts were not infallible. Everybody agrees that there are some precedential decisions that they would like to see overturned. That Justice Thomas actually has the gumption to say that he'd overturn them, or at least want them re-examined, doesn't make him different than his critics. Except that his vote actually counts.
10.9.2007 9:08am
futureb (mail) (www):
since when did every writer on this blog become an apologist for Clarence Thomas? Thomas can say whatever he wants outside the court, and he can also write whatever he wants outside the court. but it's his jurisprudence that matters. and combine his jurisprudence with comments from people like justice scalia ("he doesn't believe in stare decisis, period") and it's clear that this man could care less about the judicial craft. if a particular precedent gets in the way...too bad.
10.9.2007 10:10am
DDG:
futureb,

You could easily be describing Justice Brennan, who seemingly believed in no precedent but those he made.
10.9.2007 11:09am
PLR:
I agree with both futureb and DDG, as well as the adage that talk is cheap.

Further comment on CT's jurisprudence is reserved pending the next post on Kelo.
10.9.2007 11:17am
Pig Bodine:
Those who are critical of Justice Thomas feign outrage over his willingness to overturn previous decisions, while cheering the Court's decisions to overturn Lochner, Plessy, and any one of a hundred others -- and demanding that existing precedent like Zelman be overturned.

Is there no difference between a lone dissenter's willingness to overturn precedent and the majority of the Court doing so?
10.9.2007 11:55am
Chrisc:
futureb: Even if we accept that there is a hypothetical jurist who would overturn any precedent, in any case, regardless of impact, it doesn't seem to me to follow that he "could care less about the judicial craft"; he merely believes that the craft involves interpreting the Constitution and statute in a manner consistent with their original meaning without regard to their meaning as interpreted by prior courts.

You may argue that doing so is not the proper role of an appelate jurist, but that doesn't mean one who disagrees with you doesn't care.
10.9.2007 12:53pm
Habeas Clerk:
Largely omitted from this discussion is the notion that stare decisis plays an important role in maintaining the public's confidence that the Court, and thus the law, is not entirely subject to the whim of a five justice majority.
10.9.2007 1:41pm
DJR:
The quote seems consistent with Thomas's majority opinions that mention stare decisis. There are exactly three of those:

1) Brand X, in which Thomas holds that Chevron trumps stare decisis unless the prior precedent was based on an unambiguous reading of the statute (in which case Chevron wouldn't apply anyway);

2) Lechmere v. NLRB (1992), in which he stated, "Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning.";

and

3) U.S. v. IBM, in which the following (somewhat enlightening) discourse appears:


Stare decisis is a "principle of policy," and not "an inexorable command." Applying that policy, we frequently have declined to overrule cases in appropriate circumstances because stare decisis "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." "Even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'"

Though from time to time we have overruled governing decisions that are "unworkable or are badly reasoned," we have rarely done so on grounds not advanced by the parties. Thames &Mersey has been controlling precedent for over 80 years, and the Government does not, indeed could not, argue that the rule established there is "unworkable." Despite the dissent's speculative protestations to the contrary, there is simply no evidence that Thames &Mersey has caused or will cause uncertainty in commercial export transactions. The principles that animate our policy of stare decisis caution against overruling a longstanding precedent on a theory not argued by the parties, and we decline to do so in this case.


(citations omitted).
10.9.2007 3:17pm
mariner (mail):
Or is it possible that the SC, while agreeing that the 2nd Am. guarantees an individual right, will somehow decline to uphold the appellate court decision in Parker because they don't want to upset the apple cart of all the (unconstitutional?) gun control laws out there?


Not only is it possible, but that's exactly what I believe will happen.
10.9.2007 5:15pm
d:
Professor Kerr,

I think omitting the Scalia reference showed poor judgment. "Everybody knows that Scalia exaggerates" is not a good excuse.
10.9.2007 6:30pm
seadrive:
There is an arrogance in overturning precedent. "My reading of the constitution is truer than his reading of the constitution." The subtext, "He interpreted the constitution to get the result he wanted." should pose the question "Am I interpreting the constitution to get the result I want?"

Why do I think the answer is usually "yes"?
10.9.2007 7:28pm
Brooks Lyman (mail):
Mariner -

Very sorry to have to say that I suspect you're correct. Well, we can hope. I can't see the Republic going to the dogs if most of the gun control laws were to vanish. Although considering some of the anti-affirmative action and union dues cases, the decisions almost seem to have been honored in the breach.

Seadrive -

I really don't care; so long as we get good law that's faithful to the Constitution; the justices who bring us the changes are welcome to some chest-thumping if it makes them feel better. It's the results that matter. And really, would we want Dred Scott and Plessey to be the current law of the land?
10.9.2007 11:30pm
David M. Nieporent (www):
There is an arrogance in overturning precedent. "My reading of the constitution is truer than his reading of the constitution."
I don't understand how that quoted sttement is "arrogance." How can any honest person not believe this? How can anybody say, "his reading of the constitution is truer than mine"? If you felt a different reading was truer, you'd adopt that reading.

(Of course, you can dishonestly say, "I think my reading is worse, but I'm sticking with it anyway because I like the outcome.")

That's not to say that just because one holds a different view, one must overturn a precedent. One can say, "My reading is better, but in the interests of stability, I won't overturn a contrary precedent." But one wouldn't say, "My reading is worse."
10.10.2007 1:31am