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A Supreme Court Without Stare Decisis:
I sometimes come across arguments by lawyers or bloggers that the Supreme Court should not rely on the doctrine of stare decisis. (For nonlawyers, a rough definition of stare decisis is the practice of following prior court decisions unless there are very unusual circumstances.) The argument against stare decisis is a simple one: It's the Supreme Court's job to get it right, and the Justices can't get it right if they follow past decisions that may have gotten it wrong. As a result, the Supreme Court should always try to get it right, and it should only follow past cases to the extent the current Justices think the old decisions are correct. The goal should be loyalty to the Constitution, not loyalty to old cases by old courts.

  This argument has some surface appeal, but I'm curious what a Supreme Court without stare decisis would look like. The problem is that most legal disputes are built on and framed by the precedents of dozens of previously decided disputes, and they only make sense in the context of those decisions. It seems to me that a world in which there was really no stare decisis at the Supreme Court, and every decision was reached de novo, with no deference to prior decisions, would be a serious mess. It would be sort of like a world without language: There would be no common ground to understand and frame legal disputes or to establish basic rules of the road.

  Perhaps the best way to see this is with a simple example. Imagine a police officer pulls over a car for having a broken taillight. The driver looks very nervous, so the officer orders the suspect out of the car. The officer sees a bulge in the suspect's jacket that looks like a gun, so he frisks the man and finds a loaded pistol. A bit of research reveals that the driver is a felon, leading to charges for being a felon in possession of a weapon. The defendant files a motion to suppress, and the issue before the U.S. Supreme Court is whether the evidence should be suppressed.

  How should the Justices rule? In a world without stare decisis, all nine of them need to start from scratch. They each need to answer the following questions, among others:
1) Does the Fourth Amendment confer a personal right?
2) If the answer to (1) is yes, does the Fourth Amendment apply outside the warrant context?
3) If the answer to (1) and (2) are yes, does the Fourth Amendment apply (either directly or through incorporation) to a state police officer?
4) If the answer to (1), (2), and (3) are yes, does the scenario described above reveal any searches or seizures? (And implicitly, what is a search? What is a seizure?)
5) If the answer to (1), (2), (3), and (4) are yes, what makes a search or seizure reasonable or unreasonable? Does a police officer have the power to pull over a car for a taillight violation? Does a police officer have the power to order a suspect out of the car? Does he have the power to frisk a suspect for weapons? Did any of these violate the Fourth Amendment?
6) What is the remedy for a violation of the Fourth Amendment, and how does it apply here? Is there a suppression remedy? Is there a fruit of the poisonous tree doctrine?
  In a world with no stare decisis, each of the nine Justices would have to start from scratch in each case. Presumably there would need to be briefing and argument on all of these issues. Even if the Justices agreed as to a result, they would likely divide as to the rationale in every case. The emerging rule of law would often be unclear if not nonexistent.

  Further, even if the Justices reached a majority rationale, it's unclear that this would matter. After all, the recognized legal significance of a majority rationale from the Supreme Court is itself a matter of stare decisis, which would have no weight. In the extreme version where there is no stare decisis at all, every Supreme Court case would be a shot to entirely reinvent everything about the law. Nor would the Justices have to comply with legal niceties we know of like the case or controversy requirement, standing, etc., unless they personally agreed with them and their application, as these doctrines are routinely followed today largely as a matter of (you guessed it) stare decisis.

  You could imagine a much less extreme version of a world without stare decisis, to be sure. Perhaps the Supreme Court could only grant certiorari on very limited questions, explicitly keeping all else fixed. For example, in the Fourth Amendment case above, the Court could grant certiorari and decide only one of the very discrete questions listed above, leaving all the rest for another day. But if you really oppose stare decisis, I would think this is a terribly unsatisfactory answer: It's just stare decisis masquerading as cert jurisdiction. Stare decisis would apply de facto to every issue that the Supreme Court did not specifically agree to review, because the lower courts would still be bound by whatever the Supreme Court didn't agree to review.

  Of course, this doesn't mean that stare decisis is invariably a good thing. Lots of people have different views about when and where the Supreme Court should rely on it, and my argument here isn't addressed to those judgments. My point is narrower. In my view, the debate should be on how much and how strongly the Supreme Court should rely on stare decisis, not whether it should be applied at all.
frankcross (mail):
There would be very little rule of law. All the parties could rely on was the language of the underlying text. But when the Constitution says "due process" that tells them virtually nothing, absent explicating precedents.

Which is probably why even those nations that expressly say they are not bound by precedent (France) in fact use stare decisis.
8.17.2009 4:02pm
troll_dc2 (mail):
Without stare decisis, you could not give useful advice to someone who wanted to stay out of court (at least in the non-criminal context) because you could not know what the rules would be.

But one problem with stare decisis is applying it. I can cite you too many cases in which the Court has purported to state the rule laid down in a prior decision but has expressed it in a way that you would never guess from reading the earlier decision.
8.17.2009 4:03pm
lawrefugee:
A supreme court without stare decisis would probably highlight the fundamentally policy-oriented nature of so much of the Court's constitutional decisions -- which might argue for or allow a congressional role resolving the disputes among the court. [Contra Boerne] Isn't that the fundamental insight of the Chevron framework when it comes to regulatory amiguity?
8.17.2009 4:05pm
Seamus (mail):

It seems to me that a world in which there was really no stare decisis at the Supreme Court, and every decision was reached de novo, with no deference to prior decisions, would be a serious mess. It would be sort of like a world without language: There would be no common ground to understand and frame legal disputes or to establish basic rules of the road.


So what keeps judicial decisionmaking in civil law countries, which do not observe stare decisis at any level, from being "like a world without langauge." Certainly it's not the case that there is "no common ground to understand and frame legal disputes or to establish basic rules of the road"? Or is the answer that they observe stare decisis in practice but just don't acknowledge it?
8.17.2009 4:09pm
J. Aldridge:
Stare decisis is fine for statutory law. Constitutional law, no.
8.17.2009 4:10pm
Bill reynolds (mail):
Like most commentators on the Court you are assuming that it only deals with Constitutional matters. Of course, stare decisis always matters (at least in theory) in statutory and common law cases
8.17.2009 4:10pm
Seamus (mail):
Hmm, I see that frankcross, above, says in effect that the answer *is* "that they observe stare decisis in practice but just don't acknowledge it."
8.17.2009 4:10pm
Sasha Volokh (mail) (www):
Orin -- A world without stare decisis isn't a world where every issue is up for grabs; it's just a world where every issue _could be_ up for grabs. In your hypothetical, the Supreme Court wouldn't have to consider questions (1)-(6) each time, and in almost every case, they would consider it easier to just take (1)-(6) as given. Instead of a legal rule of "respecting prior decisions unless there are really unusual circumstances" (say the Casey rule, if anyone really follows that), it would be a prudential rule of "respecting prior decisions unless you think they're wrong," which in practice will look like the previous rule in most cases. In fact, since there's doubt as to whether Justices really respect stare decisis to begin with, it may look almost exactly the same in almost all cases.

Not having stare decisis would only be important where enough Justices have an _affirmative_ view that something was wrongly decided. Rather than imposing a duty to reconsider every issue from scratch, it gives the Justices license to take every issue as given if they want, and only reconsider the issue if they have some reason to.
8.17.2009 4:12pm
AF:
I agree with Sasha that stare decisis does not entail ignoring case law; it only entails the willingness to overruling precedents on the basis that they are wrongly decided.

Even under this understanding, however, I still think the benefits of stability, predictability, and reasonable reliance justify stare decisis in most cases.
8.17.2009 4:17pm
J. Aldridge:
What is the remedy for a violation of the Fourth Amendment, and how does it apply here? Is there a suppression remedy? Is there a fruit of the poisonous tree doctrine?

Assuming the Fourth was really incorporated by the states, it would mean any state law found violating it would be void. That has always been the remedy for any negation against a state.
8.17.2009 4:20pm
OrinKerr:
Bill Reynolds:

Like most commentators on the Court you are assuming that it only deals with Constitutional matters.

No, I don't think I am. I used a constitutional example, but the argument applies more broadly.
Sasha writes:
Instead of a legal rule of "respecting prior decisions unless there are really unusual circumstances" (say the Casey rule, if anyone really follows that), it would be a prudential rule of "respecting prior decisions unless you think they're wrong," which in practice will look like the previous rule in most cases.
Sasha, your latter description of a world without stare decisis sounds to me like the world with stare decisis.
8.17.2009 4:20pm
PatHMV (mail) (www):
Orin, you should do some research on civil law systems, particularly Louisiana's. The fundamental rule there (sometimes followed, sometimes not, of course) is that the court's job is to interpret and apply the codified law, which is the expression of the legislative will. If it becomes apparent that a past decision misinterpreted a code provision, it is the responsibility of any court, even a lowly district court, to rule in accordance with the code, not the prior court decisions.

It's been too long since my classes on the subject to recall details, but throughout the legal history of Louisiana, this has been done. There are La. Supreme Court cases saying that the district court did right to ignore the S. Ct. precedent on a particular subject, because the precedent was incorrect.

This rule is possible for us because all of our fundamental rules of law are codified. They do not emerge as case doctrine over time, slowly evolving the rules of offer and acceptance (for example) case by case by case. The rules are spelled out in a comprehensive, methodical fashion. And they stem from the people acting through the legislature, not the courts themselves. So sticking with the text is in fact following stare decisis, looking to the most original source of the law.

And of course it's not as if the courts lightly or regularly ignore relevant precedent. One can have strong respect for precedent without feeling the need to slavishly follow it in every instance.

If you'd like, I can put you in touch with a faculty member or two who I'm sure would be happy to point you to some good articles on the subject. E-mail me.
8.17.2009 4:25pm
troll_dc2 (mail):
Do we really want a system in which the Court overturns every past decision that it believes is wrong? If you so believe, are you ready (if Obamma gets enough appointments) to accept the overturning of Hans v. Louisiana, 134 U.S. (1890)?
8.17.2009 4:25pm
Specast:
Sasha --

In what sense is stare decisis a "legal rule" as opposed to a "prudential rule" insofar as the Supreme Court is concerned? My understanding is that SD is a prudential rule, at least in the sense of a rule that courts choose to follow for good reason. The issue that Orin poses is whether it should be a rule at all.

To say, as you do, that in the absence of SD the justices would take many issues "as a given" is just another way of saying the justices would conform to prior precedent, though perhaps in a less formally obligatory fashion. I think you've illustrated a weaker form of SD rather than a world without it.
8.17.2009 4:30pm
J. Aldridge:
Do we really want a system in which the Court overturns every past decision that it believes is wrong?

If the decision is factually wrong and cannot be supported by any evidence, yes.
8.17.2009 4:31pm
anomdebus (mail):
I like the idea of variable stare decisis (there may be a real term, but I don't know it). The length of time that courts should abide by the stare decisis is dependent on the spread of votes. A 5-4 decision would have to be redecided fairly quickly, but a 9-0 decision rarely.
A couple of things(at least) would happen because of this.
One, every vote will count and 5-4 votes would have less of an impact. For some issues there may be a regrettable flip-flop, but one that able to react better to changes in circumstance.
8.17.2009 4:33pm
Mike1830 (mail):
Wasn't the first decisions of the US Supreme Court issued without Stare Decisis? There wouldn't have been prior decisions of the US Supreme Court to look at.
8.17.2009 4:34pm
DJR:
Speaking to one of my law school classes, Justice Scalia said that stare decisis is an exception to the way a judge would ordinarily decide a case. So you don't upset a holding, e.g. that baseball is exempt from antitrust laws, merely because it is wrong. It takes more than that.

So as Sasha suggests, it's not that every issue must be reexamined in every case, only that every issue can be examined in any given case.

Practically speaking, however, there is not much difference. Having practiced some international arbitration I can say that it is most unsatisfactory to argue from precedents that are not necessarily binding. In form the arguments look mostly like arguments in normal courts in that the parties try to apply or distinguish precedents, but there's an additional element that you or your opponent can argue that even if the precedent is factually and legally on point, it should not be applied simply because it is wrong. If there is a decent argument to be made on the point, you must make it in order to best serve your client.

U.S. courts have page limits, which arbitration panels often do not, so that would likely reduce the problem somewhat, but not entirely. In my view, the worst part is a sort of vertigo that makes you wonder the point of making any argument to precedents that aren't binding.
8.17.2009 4:37pm
wfjag:
You've obviously never heard of the doctrine of "Jurisprudence Constante" [and despite what frankcross says, it is not merely "stare decisis" by a different name]. For a discussion of the doctrine, see, Doerr v. Mobil Oil Corp., 00-0947 (La. 12/19/00), 774 So. 2d 119, 128. One advantage was recently explained in Borel v. Young, 07-0419 (La. 7/1/08); 2008 La. LEXIS 1529*39-40:

Under the civilian tradition, a single decision is not binding on our courts; however, when a series of decisions form a "constant stream of uniform and homogenous rulings having the same reasoning," jurisprudence constante applies and operates with "considerable persuasive authority." James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La.L.Rev. 1, 5 (1993); Doerr, 00-0947 at 14, 774 So.2d at 128.

Under the doctrine, the courts expressly recognize that the legislature creates the law, and the courts are there to intrepret it, rather than create the law. Further, since the doctrine relies on examining repeated decisions on an issue, and then examining the consequences -- including unintended consequences -- no one decision becomes controlling. This also helps avoid "mission creep" by the courts (i.e., one bad decision being based on a previous bad decision).
8.17.2009 4:37pm
OrinKerr:
J. Aldridge,

Note that the Justices would follow what they think is correct, not what you think is correct. If I understand your VC comments correctly, there is a pretty dramatic difference between the two.
8.17.2009 4:40pm
einhverfr (mail) (www):
I think there is a fundamental interest you are missing.

In a court without stare decisis (pronounced in Latin: STAR-ay de-KEE-sis iirc), each decision would be de novo. This means that lawyers have greater difficulty advising clients as to what is legal or not, because each decision is discusses individually and past decisions provide no real guidance. This would create great legal uncertainty and render our legal system a crapshoot.

Another related question is what this would mean for other long-standing legal principles which, like stare decisis is aimed at promoting stability in the legal system. Would res judicata be thrown out as well? What about collateral estoppel?
8.17.2009 4:44pm
J. Aldridge:
If I understand your VC comments correctly, there is a pretty dramatic difference between the two.

Stare decisis at work.
8.17.2009 4:44pm
Bill reynolds (mail):
The standard justifications for stare decisis are that it reduces judicial discretion, enhances accountability, and makes the system more predictable--and, therefore, reduces costs. That is why every advanced legal system that I know of has some variation on stare decisis. A great discussion is in John Dawson, Oracles of the Law.

The interesting Q on stare decisis is not whether it shld exist, but when it shld not--when is it proper to over-rule. Different rules for Constitutionsal matters, stat interp, common law? New cases or old?
8.17.2009 4:49pm
troll_dc2 (mail):

This means that lawyers have greater difficulty advising clients as to what is legal or not, because each decision is discusses individually and past decisions provide no real guidance. This would create great legal uncertainty and render our legal system a crapshoot.


In essence, you would be turning a court into a miniature legislature. I think that stare decisis, res judiciata, collateral estoppel, and other non-merits-retricting rules are what make a court a court; "the law" is out there and has to be followed--or at least acknowledged.
8.17.2009 4:49pm
AF:
But if you really oppose stare decisis, I would think this is a terribly unsatisfactory answer: It's just stare decisis masquerading as cert jurisdiction. Stare decisis would apply de facto to every issue that the Supreme Court did not specifically agree to review, because the lower courts would still be bound by whatever the Supreme Court didn't agree to review.

But I thought the argument you were addressing was that stare decisis shouldn't apply to the Supreme Court (horizontal stare decisis). People making that argument presumably have no objection to vertical stare decisis and therefore to the fact that lower courts remain bound by whatever the Supreme Court didn't agree to review.
8.17.2009 4:54pm
einhverfr (mail) (www):
PatHMV:

The fundamental rule [in civil law court] (sometimes followed, sometimes not, of course) is that the court's job is to interpret and apply the codified law, which is the expression of the legislative will. If it becomes apparent that a past decision misinterpreted a code provision, it is the responsibility of any court, even a lowly district court, to rule in accordance with the code, not the prior court decisions.


But what you are talking about (vertical stare decisis* and horizontal stare decisis) are different issues. FWIW, I do think we could use with a bit less emphasis on vertical stare decisis because it leads courts to overly analogize cases. For example, consider lower court rulings in the Grokster cases where the case was improperly analogized to Sony v. Betamax.

However this is beside the point as it involves Supreme Court precedent. Here stare decisis isn't binding in the same way, but simply offers a stabilizing force and a doctrine that the court shouldn't unnecessarily disrupt the stability of law. It seems that civil law courts tend focus less on vertical stare decisis but the principle, which is indispensible in equitable decision-making in matters of law, is still respected.

* Can we please change the spelling to "stare dekisis?" The way everyone pronounces "decisis" offends my sense of Latin.
8.17.2009 4:57pm
Jam:
From a non-lawyer:

The Supreme Law of the Land is the Consitution and not previous decisions. Every Constitutional case that makes it to the SCOTUS is to be determined by the text of the Constitution (when a Consitutional question is at issue).

Once a judge comes to a conclusion then he can find/refer to previous decisions that agree with his conclusion.
8.17.2009 4:59pm
OrinKerr:
J. Aldridge, your confidence in Justice Kennedy, Ginsburg, Stevens, Breyer, and Sotomayor is surprising. I would have thought you wouldn't want to empower them to approach every case from scratch: It's interesting to me that you want to give them that power.
8.17.2009 5:02pm
PatHMV (mail) (www):
einhverfr... I'm not going to start talking about "dekisions" of the Court, no matter how much it offends your sense of Latin. It's not Latin. It's Legal Latin, which is a whole nother kettle of fish.
8.17.2009 5:02pm
anon.:
Instead of a legal rule of "respecting prior decisions unless there are really unusual circumstances" (say the Casey rule, if anyone really follows that), it would be a prudential rule of "respecting prior decisions unless you think they're wrong," which in practice will look like the previous rule in most cases.

Sasha, your latter description of a world without stare decisis sounds to me like the world with stare decisis.

If stare decisis means only deferring to the rulings a judge agrees with, then "stare decisis," as a concept, isn't doing much work. To actually be deferential, I would think stare decisis would involve judges deferring to earlier rulings that they disagree with.
8.17.2009 5:03pm
troll_dc2 (mail):

If stare decisis means only deferring to the rulings a judge agrees with, then "stare decisis," as a concept, isn't doing much work. To actually be deferential, I would think stare decisis would involve judges deferring to earlier rulings that they disagree with.



I totally agree with you.
8.17.2009 5:07pm
Rock Chocklett:

In my view, the debate should be on how much and how strongly the Supreme Court should rely on stare decisis, not whether it should be applied at all.


Prof. Kerr,

Could you point to some examples of politicians or legal commentators who argue against stare decisis in absolute terms? I would think there are very few serious voices arguing that prior caselaw should be accorded no consideration or deference.
8.17.2009 5:09pm
Mike S.:
In what sense is stare decisis a Supreme Court rule now? The only real rule in the SC is that 5 justices wins. Each justice balances respect for precedent (by the way, is there any reason that is habitually translated into Latin?) with his or her theory of constutional and/or statuory interpretation as he or she sees fit. And if the "rule" were stricken, that would still be true.
8.17.2009 5:13pm
Andrew Hyman (mail) (www):
Sasha wrote:

<blockquote>Instead of a legal rule of "respecting prior decisions unless there are really unusual circumstances" (say the Casey rule, if anyone really follows that), it would be a prudential rule of "respecting prior decisions unless you think they're wrong," which in practice will look like the previous rule in most cases.</blockquote>

Orin replied:

<blockquote>Sasha, your latter description of a world without stare decisis sounds to me like the world with stare decisis.</blockquote>

In the case of Sasha v. Orin, I agree with Sasha. Constitutional cases are often decided in favor of precedent without revisiting the merits of the original decision, even if a majority of judges may have serious doubts about the plausibility of the original decision. That's wrong, because the justices have taken an oath to the Constitution rather than an oath to the U.S. Reports.
8.17.2009 5:18pm
Sasha Volokh (mail) (www):
Orin: You're right that it's tough to tell the difference. But the reason for that is that it's tough to even describe our current doctrine of stare decisis. Clearly it doesn't prevent Justices from overruling decisions that are thought to be wrong. It just tries to prevent them from doing it too easily. So it amounts to say "let's put a thumb on the scale in favor of not reversing." That "thumb" is sometimes expressed in terms of reliance interests, how ingrained the decision has become, how old it is, etc., see the Casey test.

Now note that the rule of stare decisis is a _rule of law_. It says that Justices are _required_ to put a thumb on the scale and weigh reliance interests, etc. Of course this is unenforceable, but the doctrine of stare decisis is framed as a rule, so a conscientious judge presumably thinks he should follow it. Thus, you sometimes find judges saying "I think this precedent was wrongly decided. However, under stare decisis, I consider myself bound." Are judges really telling the truth when they say this? Who knows. Anyway, at least sometimes they claim that this is what's going on.

Because stare decisis is a rule, it's different than mere intertia. Even if we didn't have stare decisis, there would still be inertia: Most of the time, Justices wouldn't want to reconsider an old precedent, either because they think it's right, or because they don't feel strongly enough about whether it's right or wrong to put the effort into thinking up a better rule. So in most Fourth Amendment cases, say, even mere inertia would guarantee that most fundamental issues wouldn't be reconsidered, even if they could be.

Now, the interesting question: If we do away with stare decisis, we replace a rule (of putting a thumb on the scales against overruling) with inertia, which also functions in the same way! Will this make any difference? Maybe, maybe not. It depends how strong the inertia is. It also depends on whether Justices are really being candid when they say they're accepting a prior decision because of stare decisis. What all this does suggest is:

1. Getting rid of stare decisis won't make much of a difference, because mere inertia is pretty strong and works in the same direction.

2. But it might change some cases, because you wouldn't be able to say "I think the precedent is wrong but I feel bound."

3. Regardless of whether it changes any cases, it might change the reasoning.
8.17.2009 5:23pm
troll_dc2 (mail):

In the case of Sasha v. Orin, I agree with Sasha. Constitutional cases are often decided in favor of precedent without revisiting the merits of the original decision, even if a majority of judges may have serious doubts about the plausibility of the original decision. That's wrong, because the justices have taken an oath to the Constitution rather than an oath to the U.S. Reports.



You assume that everything is clearcut. But there is hardly an inch of the Constitution that does not require interpretation of some sort so that it can be applied to a given claim. The contest is between a fresh interpretation or an older one.
8.17.2009 5:26pm
Steve:
This debate is closely related to the question of whether each case has one and only one correct result.
8.17.2009 5:28pm
Lior:
Don't Thomas's dissents in the last few years commonly include statements that he will no longer follow precedent when he thinks it's wrongly decided?
8.17.2009 5:29pm
NaG (mail):
The only difference in a world without stare decisis would be that rulings are overturned by a majority of the Court with slightly less explanation, given that there are cases setting forth some hurdles for when stare decisis may be eschewed. But otherwise, our legal system is reliant on caselaw rather than being a code-based system (like France). With or without stare decisis, caselaw would be used to reach the result. The only difference is that it would not be assumed that all caselaw should bear the presumption of validity. So I don't think it would make quite as much of a difference as Prof. Kerr believes.
8.17.2009 5:35pm
OrinKerr:
Sasha,

I agree that our disgreement here boils down to the question of what is stare decisis.

In my experience, those who claim to oppose stare decisis aren't referring to the Supreme Court's occasionally-invoked jurisprudence on when to explicitly overrule prior precedents. Indeed, most have never even heard of that line of cases. Thus, I wasn't thinking of stare decisis in those terms, but rather was referring to the idea (as defined in the first pragraph in my post) of following prior court decisions unless there are very unusual circumstances. I think that's what most people think stare decisis means, and I think it encompasses your "inertia" approach as well as the occasionally-invoked caselaw on when prior court decisions should be overturned.

Perhaps the lesson is that the proper response to those who say they are "against stare decisis" is to ask what they think that means and what should replace it.
8.17.2009 5:35pm
OrinKerr:
This debate is closely related to the question of whether each case has one and only one correct result.

Interesting. How?
8.17.2009 5:36pm
sk (mail):
This argument brings up a different (severe) problem that noone has considered (Though the quote below touches upon it).

"In a court without stare decisis (pronounced in Latin: STAR-ay de-KEE-sis iirc), each decision would be de novo. This means that lawyers have greater difficulty advising clients as to what is legal or not, because each decision is discusses individually and past decisions provide no real guidance."

The problem with this quote is, lawyers don't advise clients what is legal or not, before those clients act-they advise clients what is legal or not, after they've been caught and charged-when it is too late to alter one's behavior. The particulars of the legal advise (what's legal or not) have to be known by the client/citizen BEFORE THE ACTION IS PERFORMED.

So, the real problem is: whether the courts use Stare Decesis or De novo (or something else) is really a petty problem (from a society-wide perspective). The real problem outlined (though not addressed); if the laws and rules of behavior are so ambiguous, how is a citizen expected to knowingly act legally in the first place? If supreme court justices go through this much difficulty figuring out which decisionmaking method to use (much less what decision to ultimately make), how can a citizen be expected to know how to behave before being arrested in this ambiguous, controversial instance?

The answer, I think, is that citizens have to assume the worst: in the hypothetical example, that felon should assume he can't own a gun, and assume he can be searched, and thus not own the gun (do felons know this? Are felons briefed by anybody about the rules towards owning guns? Note that it doesn't really matter-there are tens of thousands of other examples, that aren't so clear cut, under which people could get in severe trouble without knowing it).

The example is a bit poor for my argument because it is seemingly so clear cut (felons can't own guns, and should know they can't own guns, I suppose). But there are real world examples that aren't.

I have never owned a gun. I am not a felon. I have thought (in a very abstract manner) of buying a gun. But I am vaguely aware of two dramatically different legal situations with related to guns: one, that it is a constitutional right. Two that state-specific laws can be draconian-perhaps even life-altering, in the way they limit or control that constitutional right. For instance, I have the vague sense that you can get in real (i.e. prison time) trouble, if you have a gun in your car that is not stored properly (whether that means trigger locks, or locked, or locked separate from ammunition, or whatever, I have no idea) in some states (for some reason, I am thinking of Illinois). Other states are dramatically different.

Thus, I, as a citizen, have to 'assume the worst,' and fear prison time, even in exercising constitutional rights. In fact, to be safe, I have to 'assume the worst' in really everything I do.

Why? 2 reasons: 1) because the law, as written, is so complicated, nobody knows it all, and 2) because courts use stare decesis to essentially create law consistent with prior court cases (rather than with written law), which is knowable by nobody other than fulltime lawyers and judges (in fact, its not even knowable by them until they encounter a case which requires them to research it).

Thus, ultimately, its not terribly important whether judges have an easier time making decisions with stare decesis or de novo. Which method is easier for citizens to understand?

Sk
8.17.2009 5:42pm
Thoughtful (mail):
Steve: This debate is closely related to the question of whether each case has one and only one correct result.

Orin: Interesting. How?

Me: Just as a guess, I assume (because Steve thinks) a Justice who feels he would have decided a case differently, but nonetheless feels the case wasn't decided wrongly, would have less commitment to overturning it than a Justice who feels the case was decided differently and therefore necessarily wrongly (because each case has one and only one correct result).
8.17.2009 5:44pm
CVme:
Lior: Thomas often dissents to say that he continues to believe a prior case should be overruled, or to say that he continues to believe that a case he dissented from was wrongly decided. I don't think he has ever stated he would throw out stare decisis, though it's clear that he is more willing than the other 8 to reexamine prior cases, particularly when it is constitutional rather than statutory questions that are at issue.
8.17.2009 5:44pm
einhverfr (mail) (www):
PatHMV:

einhverfr... I'm not going to start talking about "dekisions" of the Court, no matter how much it offends your sense of Latin. It's not Latin. It's Legal Latin, which is a whole nother kettle of fish.


What does that say about stare decisis?
8.17.2009 5:54pm
Steve:
Interesting. How?

If you believe every question has a right answer and a wrong answer, then it's much simpler to conclude that every decision you disagree with is a "wrong answer" that ought to be overturned.

On the other hand, if you believe there's room for interpretation and honest disagreement, then stare decisis becomes an important way of giving the law some degree of certainty. In other words, even if you're not persuaded that a given rule is necessarily correct, there's some value simply in having a rule.

If the Roberts Court disagrees with the Warren Court about a question of interpretation, it may not make a lot of sense to say that the Warren Court necessarily wins because it got there first. But does it make any more sense to say that the Roberts Court wins because it got there last? Stare decisis is a way for a judge to come to peace with the realization that "I'm pretty sure I'm right about this, but those other smart judges were pretty sure they were right too."
8.17.2009 5:58pm
einhverfr (mail) (www):
troll_dc2:


You assume that everything is clearcut. But there is hardly an inch of the Constitution that does not require interpretation of some sort so that it can be applied to a given claim. The contest is between a fresh interpretation or an older one.


In other words, it is a contest between conservative and innovative methodologies.

PatHMV:

In case you didn't get point contained in satire, let's follow this reasoning a bit, looking at the issues of analogy and differentiation.

Decisis and Decision are words which are both Latinate at root, but the latter comes in from Norman French while the former comes from legal Latin. They could be analogized on the basis that they share a root, or differentiated on the basis that while Decisis is Latin in both form and origin, Decision is Anglo-French in origin and English in form. The differences here might allow a neutral referee to conclude the same rules should apply or different ones would.

So the question is whether we want to provide substantial deference to the tradition (in which case, we uphold the pronunciation of decisis as following English rules and analogize decisis/decision) or whether we want to go back and correct for past mistakes in which case we differentiate and insist on the Latin pronunciation.

However doing the latter is fundamentally disruptive in a way that the former is not.
8.17.2009 6:01pm
Asher (mail):
"This argument has some surface appeal, but I'm curious what a Supreme Court without stare decisis would look like."

I suspect that opponents of stare decisis envision an alternative a little less throughgoing than the one suggested in your hypo - namely, precedent's precedent and is applied under usual circumstances, doctrine isn't reinvented in every case from scratch, but, if a majority of the Court thinks a precedent's wrong, they can rule so even if the decision they're overturning wasn't an absolutely grotesque misreading of the Constitution or relevant statute. Assuming that this is what opponents of stare decisis mean, my answer to your question quoted above is, in part, that you'd see a more intellectually honest Court. For example, in virtually every affirmative action case (loosely defining affirmative action to include pro-minority redistricting) the Court's heard post-Croson, the four Justices who think that Croson was wrong pretend to apply strict scrutiny to the program at issue and invariably discover that the program is narrowly tailored, even when it's clearly not, and that it has a compelling purpose, even when one doesn't appear to be available. Of course what they'd really like to say is that they don't think strict scrutiny should apply at all. I think it would be a quite salutary development if they were free to do so and didn't feel compelled to go through the rigmarole of littering the U.S. Reports with disingenuous applications of strict scrutiny.
8.17.2009 6:02pm
frankcross (mail):
An interesting and informative decision.

But, wfjag, your quotation describing the civil law in Louisiana is pretty much identical to the operation of the stare decisis system of common law. I suppose a study would be in order -- do Louisiana courts rely less on precedent than those of other states? Having read some opinions, my impression is no, but it should be studied.

Ultimately, though, I don't think you could do away with stare decisis if you wanted. It's too inherent. Michael Gerhardt's book shows how strong precedent can be even when it's not a legal rule to follow it. But you could weaken it
8.17.2009 6:28pm
OrinKerr:
Steve writes:
If you believe every question has a right answer and a wrong answer, then it's much simpler to conclude that every decision you disagree with is a "wrong answer" that ought to be overturned.

On the other hand, if you believe there's room for interpretation and honest disagreement, then stare decisis becomes an important way of giving the law some degree of certainty. In other words, even if you're not persuaded that a given rule is necessarily correct, there's some value simply in having a rule.
Interesting, although you could look at it the opposite way: Many legal questions have easy answers if each Judge is free to interpret the law from scratch, but become indeterminate when the task is substantially complicated by the need to situate a new set of facts among poorly written and indeterminate precedents.

Ledbetter is an interesting example, I think, What made the case hard was the existence of nontextual precedents, which created a tension between the text and the precedents. In a world with no stare decisis, the issue would be much easier.
8.17.2009 6:28pm
David Schwartz (mail):
I think you are misunderstanding what is meant by no stare decisis. For example, there is stare decisis in mathematics. We follow previous mathematicians only to the extent we believe they are correct. But this doesn't mean I have to start a calculus problem be reinventing the integers.

No stare decisis means we follow precedent only to the extent we believe it is correct. If we have no reason to question it, we don't question it just for fun. But if someone does question it, we put no weight on what the prior decision was except so far as it can persuade us it is correct.
8.17.2009 6:28pm
AJK:


I suspect that opponents of stare decisis envision an alternative a little less throughgoing than the one suggested in your hypo - namely, precedent's precedent and is applied under usual circumstances, doctrine isn't reinvented in every case from scratch, but, if a majority of the Court thinks a precedent's wrong, they can rule so even if the decision they're overturning wasn't an absolutely grotesque misreading of the Constitution or relevant statute.


That's certainly what I think. To take the original example, the individual justices wouldn't have to reconsider all of those questions any more than they do now — if there's a line of precedent they find persuasive, they can simply point to it the way they do in reality. The difference is that the justices would be able to to provide a different answer to any of those questions if they found the settled answer unconvincing.

It's true, of course, that justices can do that now; I'd just like them to feel more comfortable doing it. As it is, justices seem to prefer to twist precedent around or make unconvincing distinctions or modifications to reach what they see as the correct result. I'd rather have them feel more comfortable with declaring the previous ruling to be mistaken. (Obviously I think that lower courts should be more restricted in their rulings.)
8.17.2009 6:29pm
conlaw2 (mail):
What I keep seeing from the no stare decisis arguments is that there should be a balance between upholding old law and interpreting each case on its own merits.

My question, isn't that the way the courts work now. They follow old precedent, and where they disagree they overturn the old precedent. I know this doesn't happen often, one or 2 times a year on average. But isn't this the same result that we would expect under a no stare decisis system?
8.17.2009 6:33pm
louisianalawyer:
PatHMV mentions Louisiana's Civil Code. In theory, in the Louisiana "civil law" system the Civil Code is all that matters and there are even cases that claim that court decisions are not binding precedent in Louisiana as they are in common law states. In this view it is the code that matters, not court decisions.

My experience is that is largely propaganda. Louisiana Supreme Court interpretations of the Civil Code are regarded as definitive by litigants and lower courts, and lower court decisions that depart from them will be reversed. Maybe in decades past, when Louisiana had many areas of law codified that were in other states handled by common law precedents, there was a marked difference between our state and others. Today I think this is much less so; for one thing, because statutes now supplant the common law so regularly in common law states.

While this may seem off-topic the point is this: even a system that nominally suggests you are free to reinvent the wheel with every new case, does not actually do so. It could not work this way, or law would simply be too unpredictable and haphazard. There's enough variation now- when the judges actually claim to be following precedent!

Stare decisis, or something like it, is necessary, and the US Supreme Court would have to invent it if it didn't already have it. Chaos would obtain in district and appellate courts across the country, if all of a sudden everybody with an Article III pedigree becomes an equally authoritative declaimer of the constitution. The word is "incoherent."

That said: stare decisis properly has less force in constitutional cases. The political costs of changing a statute are high, even if a statute is pretty clearly being interpreted in an unsatisfying manner. But the cost of changing the constitution are astronomical.

Virtually all judges and lawyers, liberal or conservative, agree with these propositions, and further agree that stare decisis should not prohibit the Court from overruling a constitutional precedent if it is "wrong enough." When do you get "wrong enough"- now, that is an exercise in line-drawing, and where the battles are fought.

And while I do not believe the work of judges is all politics, these big-picture legal questions- such as the validity of Roe v. Wade- are in essence political. The impermanence of consensus on such questions, and their susceptibility to the ever-swinging pendulum of opinion both popular and elite, is another reason decisions on such issues are quite properly regarded as less eternal than decisions based on less political rationales.
8.17.2009 6:45pm
FWB (mail):
Stare decisis is like believing the world is flat and telling Columbus, to forget it.

Stare decisis in science would destroy all science.

EVERY past case should be reviewed over and over to prove its value.

In science, the scientist is constantly testing against theory/law trying to prove it right or wrong. If science accepted past works like judges accept past decisions, nothing would move forward, the search for "truth" would not occur.

Stare decisis, believing that the other judge(s) was(were) infallible, is a terrible idea.

Tiocfaidh ar la!
8.17.2009 7:10pm
Kara:
I think an advantage of the SD rule is that it requires litigants to clarify the issues by identifying and making the argument to overturn or harmonize the precedent.
8.17.2009 7:13pm
Kara:

It's true, of course, that justices can do that now; I'd just like them to feel more comfortable doing it.


I don't see the advantage of giving judges greater discression.

This discussion does remind me of a joint ethics course I took in law school, where half my classmates were medical students. We were discussing a case decided in the 1920's and the medical students could not understand how a case from the 20's mattered, because it was so old.
8.17.2009 7:25pm
Wince and Nod (mail) (www):
sk,

I am also not a lawyer. Your point is so important, though a bit off-topic, that I think it should be addressed.

You are pointing out a key flaw in the entire idea of the rule of law. There appear to be two extremes and no happy middle. There can be too many rules and they are too complex for anyone to actually follow so people either unknowingly break them and are unjustly punished or they self censor and won't do what they justly have the right right to do. The other extreme is that there are too few rules and they are too simple to handle the complexity of real life.

You have shown how often the first case produces bad results under our system. The second case shows up as 'zero-tolerance' rules. They are, in practice, even more oppressive, which is why we usually only foist those abominations on our children, who can't vote.

Generally I favor less legislation and more judgement by judges, even though it puts you in that pickle you mentioned.

Yours,
Tom DeGisi, aka Wince
8.17.2009 7:36pm
PersonFromPorlock:
If an unconstitutional law is no law ab initio, isn't a Court decision that violates the Constitution no decision, also ab initio? In that case, there's nothing there to 'let stand'.
8.17.2009 7:46pm
Norman Yarvin (www):
Since stare decisis is an entirely informal doctrine, the question of what would happen in its absence is somewhat ill-posed. A better question might be that of what formal scheme might be instituted to replace it. I rather like Macaulay's suggestion, in Notes on the Indian Penal Code, that in any case where judges decide the law is ambiguous, the rule should be that the defendant gets the benefit of the doubt, and the legislature is then formally notified that the law was found to be ambiguous, so that they can fix it:

http://books.google.com/books?id=-q87R0WQUaoC&pg=PA323

Obviously this does not apply to constitutional questions, where there is no longer a legislature with the power to make changes. Or at least some different mechanism would have to be found for instances in which judges find a part of the Constitution to be ambiguous. (A referendum? A constitutional convention?) But most of the business of the courts is in interpreting statutory law, where Macaulay's scheme seems quite feasible.
8.17.2009 7:53pm
Dave N (mail):
One of the things I remember most from my ConLaw class was the discussion (and the readings) about how the Supreme Court got from Plessy v. Ferguson to Brown v. Board of Education.

While I am certainly no fan of Thurgood Marshall as a Supreme Court justice, his leadership at the NAACP Legal Defense Fund, Inc. was brilliant. The NAACP Legal Defense Fund literally worked over decades to craft case after test-case to undercut the rationale of Plessy, ultimately leading to Brown.

As a result, Brown seemed much more acceptable than, say, the overruling of Bowers v. Hardwick by Lawrence v. Texas, which struck many as justices changing their minds rather than justices concluding its prior precedent was actually untenable.
8.17.2009 8:31pm
frankcross (mail):
Orin, if Ledbetter would have been easier in a world without precedents, how did those intervening precedents occur? I'm not sure exactly what cases you are talking about, but it seems to me that complicating precedents are probably a product of either (a) cases of first impression, which refutes your theory about clarity or (b) cases ignoring precedent which would also refute the theory.

But the bottom line is that any theory dreamed up in the complicating precedents could be equally dreamed up in a world without stare decisis.
8.17.2009 9:02pm
Asher (mail):
As a result, Brown seemed much more acceptable than, say, the overruling of Bowers v. Hardwick by Lawrence v. Texas, which struck many as justices changing their minds rather than justices concluding its prior precedent was actually untenable.

Not so much justices changing their minds as different justices - although I suppose you could argue O'Connor changed her mind and just didn't want to say so. I think that would be an example of the sort of stare decisis rollback I'd like to see. But now that you mention Bowers and Lawrence, I think it's also an example of a better argument you can make in favor of retaining stare decisis than the one Prof. Kerr proffers - to wit, we can't change the law back and forth every 10-20 years or every time the composition of the Court moves a vote to the left or right. If McCain had won the last election, it's conceivable you could quickly get a 5-vote majority to overturn Lawrence, which is problematic. There's some cliche here I'd like to invoke but can't quite recall about shifting sands, but you get the point.
8.17.2009 9:06pm
OrinKerr:
frankcross writes:
Orin, if Ledbetter would have been easier in a world without precedents, how did those intervening precedents occur? I'm not sure exactly what cases you are talking about, but it seems to me that complicating precedents are probably a product of either (a) cases of first impression, which refutes your theory about clarity or (b) cases ignoring precedent which would also refute the theory.
Frank, you seem to be attributing a theory to me without the benefit of telling me what you believe my theory is. I am having a hard time identifying the theory you think I have that would be refuted by this.

If you are suggesting that the fact of complicating precedents suggest that there is no best answer to any/some/most legal questions, such a sugestion would have to rely on a lot of assumptions: It would require, among other things, the assumption that Supreme Court justices in the past always have tried in good faith to follow the law, and were skilled at doing so. But we know that not to be true.
8.17.2009 9:23pm
arbitraryaardvark (mail) (www):
Although I agree with Orin's concluding lesser point, I think he's set up a straw-man. Prior precedents would retain whatever persuasiveness they held. The court will have little interest in recreating the wheel. Stare decisis is the principle that we'll keep doing it the way we've always done it, even though we now understand we've been wrong. (See e.g. Slaughterhouse.)
As a concrete example of stare decisis at work, I hope there will be another 2nd Amendment case soon, other than the incorporation question cases. Are all 9 members of the court willing to follow Heller, even if they don't like it, just because of stare decisis?
On the question of whether there's one unique right answer per case, I generally subscribe to the realist perspective:
every precedent is distinguishable, and for every every precedent there is a counterprecedent setting out the opposite rule of law. Decide the outcome based on equity or personal preference, then arrange the precedents to fit the predetermined conclusion.
8.17.2009 9:26pm
Kara:

It would require, among other things, the assumption that Supreme Court justices in the past always have tried in good faith to follow the law, and were skilled at doing so. But we know that not to be true.


Would you please name a few examples of the Justices not acting in good faith? So, that I understand what you ar refering too?
8.17.2009 9:41pm
ReaderY:
One always has to keep in mind that Justices, like Lords, can be made like so many sausages. It's only at Congress' sufferance that the size of the Supreme Court hasn't been radically expanded. Stare decisis, and the perception that the court represents something more than simply a vote of its current membership, help reduce the temptation to do so.
8.17.2009 10:09pm
David Hecht (mail):
Perhaps I do not fully understand the issue, but ISTM that there is currently a kind of muddled middle ground the court seems very fond of: rulings that incorporate a so-called "balancing test"--IOW where each future case subject to the ruling will be decided by the individual court based on what they perceive to be the relative weight of the things to be "balanced". This eliminates clear understanding of the law's intent since now there is no "bright-line" basis for understanding how a particular case will be decided.

I appreciate this is only tangentially related to Stare Decisis, but as the latter is really about the predictability of the law, it seems relevant.
8.17.2009 10:19pm
ll (mail):

While I am certainly no fan of Thurgood Marshall as a Supreme Court justice, his leadership at the NAACP Legal Defense Fund, Inc. was brilliant. The NAACP Legal Defense Fund literally worked over decades to craft case after test-case to undercut the rationale of Plessy, ultimately leading to Brown.


Was that only necessary in a "stare decisis" system?

Would it have been unnecessary, or much less necessary, in a Civil Law approach, in which the court returns to first principles and reasons from them, looking at previous decisions as "informational" rather than "determinative"?
8.17.2009 10:51pm
tvk:
I don't think it would be as difficult as you think. Most Justices' views are fairly fixed. Even without stare decisis, they would still maintain their views. And so your laundry list of questions can simply be answered according to how the Justice has thought about the issue previously. There is a difference between citing prior thoughts as good reasoning, and citing prior thoughts in a kind of blind adherence. Stare decisis, to the extent it is a doctrine with any force (which I am personally rather dubious), is more a matter of the latter.
8.17.2009 11:16pm
Ohgoodgrief (mail):
Half the lawyers in a case seek a niche through which to attack Stare Decisis. The other half seek to defend it Context matters..
8.18.2009 12:05am
J. Aldridge:
OK said: "J. Aldridge, your confidence in Justice Kennedy, Ginsburg, Stevens, Breyer, and Sotomayor is surprising. I would have thought you wouldn't want to empower them to approach every case from scratch: It's interesting to me that you want to give them that power."

I don't know what gave you that idea. However, having justices starting from scratch on constitutional questions under the current system would be unworkable. There is no checks and balances on the court nor is there any written guidelines for the court to follow. And with the senate directly elected by popular vote as with House Representatives, the court has become too politicized to be objective.

The judicial system will have to be overhauled at the next revolution as it is unable to do so on its own now for very political reasons.
8.18.2009 1:20am
David Blue:
I am dubious about stare decisis, interpreted as the doctine that sufficiently long-established judicial precedents ought to be followed, right or wrong. It seems unpredictable and political.

The unpredictability problem is, at what rate does the glue of stare decisis harden? If a decision that seems wrong should stand nevertheless, because it already has stood for a length of time, how long is that time? If you need to get a decision reversed, how long do you have before the sands run out?

There seems to be no rule except that if you like the way things are now, you say that the precedent is sufficiently established, and if you don't like it you need to keep saying "Not dead yet!" or something like it.

Rules are bad when they are not really in force, except if powerful people want them to be, when by bluff and bluster they may them count, to serve a purpose. Stare decisis seems to have something of that about it.

If you say that it doesn't matter how long a decision has stood, it still holds only its persuasive force, then you know exactly what the passage of time is doing to the power of every decision: nothing. That seems more stable, in a sense, and more transparent.
8.18.2009 2:41am
Kelvin:
In an important sense, stare decisis is about fairness. It is unfair to treat similarly situated litigants differetly. The alternative is too respecting of the power and favor of the indivdual litigants, in each case. Thus, any system of law needs something like the stability and predictability provided by SD. Even systems that don't have SD, find they need something like it.
8.18.2009 7:07am
David Blue:
But something might be enough like it to provide the needed fairness, and be better than it.

A statement of how long a bad decision has to stand before it becomes effectively immune to review would be something. "Ten years and you're stuck with it" be more law-like than judges in effect deciding what weight previous decisions should have by rolling dice with the numbers worn off them, so that only they can see what they rolled.
8.18.2009 9:00am
MarkField (mail):

Stare decisis in science would destroy all science.


Clearly you're not a fan of Thomas Kuhn.

I certainly agree that in science all results are theoretically up for reassessment, but in practice not so much. Science operates under a pragmatic standard which isn't that far from stare decisis. SD does NOT mean a decision is forever immune from reconsideration, it just means that courts aren't going to re-evaluate old decisions absent a really good reason. That's pretty much true of science as well.
8.18.2009 10:09am
wfjag:
@frankcross:

But, wfjag, your quotation describing the civil law in Louisiana is pretty much identical to the operation of the stare decisis system of common law. I suppose a study would be in order -- do Louisiana courts rely less on precedent than those of other states? Having read some opinions, my impression is no, but it should be studied.

The fact that Jurisprudence Constante reaches the same result 99 times out of 100 as stare decisis fails to prove that one is the equivalent of the other. Any effective legal system needs predictability. Moreover, as Pat and louisianalawyer correctly point out, Louisiana isn't cleanly a civil law system. Many common law doctrines have crept in over the years -- even when there were Civil Code provisions that could not be reasonably read in any way except as contrary to them (e.g., the Civil Code of 1803, and the Codes thereafter, clearly mandated comparative negligence. However, until the 1980s, the common law doctrine of contributory negligence was followed. There are many other examples, but, this is one that most common law attorneys easily understand).

The biggest difference between Jurisprudence Constante and stare decisis is that in the former no single decision is authoritative. Still, as louisianalawyer correctly notes, if the La. Sup. Ct., or a Court of Appeal in which the trial court sits, has issued an opinion that covers the issue, you'd better come up with very convincing reasons on why either the decision was wrong, or unintended consequences warrant reconsideration, or that it does not apply under the instant facts. Still, the same is true if the trial judge has previously decided an issue. Under stare decisis, the court has created law. Accordingly, a single decision is authoritative, until it is overruled or modified.

You can see the differences in the doctines in the litigation history leading up to Doerr v. Mobil Oil Corp., 774 So. 2d 119. In the early 1990s, the La. Sup. Ct. decided a case named Kajun Food Stores v. South Central Bell Telephone, holding that a so-called "abolute pollution exclusion" did not bar recovery under a CGL policy by an adjoining land owner on its tort claim. A candidate for the La. Sup. Ct. ran on a platform that included promising to overrule Kajun Food Stores and interestingly, the decision was not listed in Sheppards and it took an order of the La. Sup. Ct. for West Publishing to publish the decision (in Louisiana, publication gives decisions precedential value. Kajun Food Stores retained its weight as precedent although the La. Sup. Ct. granted a rehearing and vacated the decision when evidence was presented that the insurer had never secured authority from the Ins. Dept. to include "absolute pollution exclusions" in its policies). The candidate was elected and Kajun Food Stores was overruled the next time that the court considered a pollution exclusion. The next time after that the court considered a pollution exclusion was in Doerr, and the court relied on Jurisprudence Constante. Kajun Food Stores, and all the other La. state and federal decisions intrepreting pollution exclusions were reviewed. The decision overruling Kajun Food Stores was overruled because it conflicted with basic doctrines. So, Kajun Food Stores is (again) considered as one of the decisions illustrating the correct approach in analyzing the issue, and so is (again) precedent.

This would never have occurred under stare decisis -- even in a common law state in which an issue became as openly political.

The difference in the doctrines is that under Jurisprudence Constante, precedent is a strong prima facie showing of what the law is, whereas, under stare decisis, the court usurps the legislature's powers and declares what the law is. It's not that Louisiana judges are any less instinctively inclined to legislate from the bench than are common law judges. Rather, their doctrinal footing to do so is less secure. That can result in very large differences.

In contrast to Doerr, you might consider how pollution exclusion jurisprudence has evolved in California. There, stare decisis is followed. However, in California, if a case settles while a writ application is pending from the Court of Appeal to the Ca. Sup. Ct., the Court of Appeals decision is depublished and can no longer be cited. Apparently, a large number of decisions adverse to insurers have been made to disappear using this rule.
8.18.2009 10:14am
Jam:
"in any case where judges decide the law is ambiguous, the rule should be that the defendant gets the benefit of the doubt, and the legislature is then formally notified that the law was found to be ambiguous, so that they can fix it"

I like this.

"Obviously this does not apply to constitutional questions, where there is no longer a legislature with the power to make changes."

Wrong! Always benefit liberty and individual rights and if the issue is of such importance there is are a couple of amending processes which can be used to [allegedly] rectify the ambiguity.
8.18.2009 10:34am
Jam:
And why not following stare decisis will lead to uncertainty has not adequately been explained. Maybe too many people rather have order than liberty. That would explain a lot of what the governemnts can get away.
8.18.2009 10:48am
Jam:
On the issue of the prounciation of decisis: I asked my wife and she said that in ecclesiastical latin the "c" is prnounces "ch" (before E, I, Y, Æ, Œ ).

Ecclesiastical Latin Pronunciation

The Pronunciation of Classical Latin
8.18.2009 10:48am
troll_dc2 (mail):

And why not following stare decisis will lead to uncertainty has not adequately been explained. Maybe too many people rather have order than liberty. That would explain a lot of what the governemnts can get away.



Care to discuss the problem that you apparently would be pleased to create for people who have relied on a prior ruling? Or would you try to solve that mess by embracing the idea of prospective overruling?
8.18.2009 11:10am
martinned (mail) (www):

But, wfjag, your quotation describing the civil law in Louisiana is pretty much identical to the operation of the stare decisis system of common law.

It is pretty much the same. I'd wager that there is no meaningful difference in the rate at which different supreme courts overturn their precedents, if one were to compare civil law and common law countries. The method at which results are arrived at is also quite similar. The only difference is the way rulings are written.
8.18.2009 11:17am
CJColucci:
There's a big difference between speaking Latin and speaking in English about Latin-based terms and names. If we are speaking in English about the lawyer, politician, and philosopher of the late Roman Republic, we speak of SIS-er-oh. In Latin class, when speaking in Latin, and mentioning his name, it's KIK-er-o. Much the same with Law Latin, often an indirect import from old French. When English-speaking lawyers, speaking in English, use these terms, they should follow the maxim "when in Rome, do as the Romans do" -- which means not pronouncing as the Romans would pronounce.
8.18.2009 11:23am
ckirksey (mail):
Anyone:
I am not a lawyer but read VC daily. A couple of questions concerning SD as a rule and other maybe rules. How does the SCOTUS impose its rules on lower courts? Any punishment? Impeachment by congress I suppose. I know the number of justices is set by law to be nine but is the decision by majority of five set by law? If it was by law and say Kennedy retired could a potential Senate deny a ninth justice and in effect be letting appeal courts decide what the law is?
8.18.2009 11:24am
einhverfr (mail) (www):
Jam:

And why not following stare decisis will lead to uncertainty has not adequately been explained.


If every legal idea is up for reconsideration in every legal decision, then it is difficult or even impossible to know how the court will rule beforehand.
8.18.2009 11:43am
martinned (mail) (www):

If every legal idea is up for reconsideration in every legal decision, then it is difficult or even impossible to know how the court will rule beforehand.

Really? The logic of past rulings suddenly doesn't work anymore? Let's make the thought experiment more specific: Given the current makeup of the Court, which (important) precedents would be overruled but for the existence of the doctrine of stare decisis?
8.18.2009 11:59am
Kelvin:
Martinned: Dickerson and Casey: there's a good possibility that Kennedy would go with the new conservative 4 to overule, absent SD.
8.18.2009 12:11pm
DePeal (mail):
How would the stare decisis of Roe v Wade stand up to the challenge that "government-managed health care" violates the same right to privacy? Just as the government has no jurisdiction to tell a woman whether or not she can have the medical procedure "abortion", government has no jurisdiction over anyone's health choices.
8.18.2009 12:22pm
martinned (mail) (www):
@Kelvin: Dickerson was 7-2 to re-affirm Miranda. I'm not sure how you imagine that coming out absent SD, but I suspect you would predict a ruling overruling only the part where the punishment for violation is (automatic) supression. Surely the Miranda warning itself is such a legendary party of US legal culture that the Court wouldn't touch it?

Or do you predict a ruling that makes Miranda statutory and therefore open to Congressional overrule? That seems unlikely, for the same reason.

As for Casey, the problem is a similar one. I'd say there is little chance of a big overrule, i.e. an overrule of Roe v Wade, for reasons discussed many times in past threads, among which is the fact that many justices are rather attached to the right to have an abortion, at least in some form. So overruling Casey means allowing more tinkering by state legislatures without allowing them to ban abortion outright.

In both cases, the result of taking away the doctrine of stare decisis is minor. No major earthquake in the US legal system, no massive uncertainty. On a few points, existing doctrines are changed. That's a result that could occur just as easily as a result of having Kennedy replaced by a justice who is less attached to the power of precedent.
8.18.2009 12:31pm
martinned (mail) (www):

How would the stare decisis of Roe v Wade stand up to the challenge that "government-managed health care" violates the same right to privacy? Just as the government has no jurisdiction to tell a woman whether or not she can have the medical procedure "abortion", government has no jurisdiction over anyone's health choices.

What gives you the idea that the government is seeking any such thing?
8.18.2009 12:31pm
ShelbyC:
Where this would make the most difference is in the case of popular yet indefensible decisions, like Miranda
8.18.2009 12:32pm
DePeal (mail):
Well, HR3200 does call for creating "best practices", to be used by the doctor as way things are done. Is that not government exercising jurisdiction?
8.18.2009 12:40pm
Kelvin:
Without SD, I don't think it matters that Dickerson was 7-2.

Besides, you asked about the current court, meaning how you get to five. Assuming the 2 Bush appointees would go with Scalia/Thomas who don't like Miranda or Roe, they just need Kennedy, who Justice Scalia wrote relied too much on DS in Dickerson and Casey.
8.18.2009 12:48pm
martinned (mail) (www):
@DePeal: That depends on whether they are recommended or absolutely required, and on the extent to which the patient can opt out of them. (For example by going to a private clinic.)

@ShelbyC: You think? I'd say the Court is political enough to shy away from overruling popular precedents (or statutes). That's why I can't imagine them touching the core of Miranda, which may well be the single most famous precedent of all, and one that I'd say is very popular.
8.18.2009 12:49pm
Dean Anderson (mail) (www):
As a non-lawyer reader of law and public policy, I think there is a procedural way to prevent stare decisis when appropriate: One need only change the law or the Constitution. And a law professor told me that Courts can also find different facts to insulate themselves when they want to reach decisions that are different from superior Courts.

But I think the question is really what should a current or future Supreme Court do about previous Supreme Court decisions; and (I think) the answer is that a Court should follow the previous Courts until the law or the Constitution is changed or different facts are found. The essence of the question is whether a prior Supreme Court is inferior to a current or future Supreme Court. I think the answer is that they are equal rank with overlapping jurisdictions separated only in time.

To put it another way, a Court should only overrule an inferior Court. Prior Supreme Courts are of equal rank as a current Supreme Court. Courts of equal rank and overlapping jurisdictions should not reach conflicting decisions. Any other rule results in chaos, both legally and socially.

Without stare decisis one acts differently: instead of obeying the law, one just waits until a Court imposes a penalty on each individual, ignoring all other similar penalties imposed on others. Without stare decisis, then socially, one would just ignore prior law and expect that their case will be different from all the rest.

I've noticed that lawyers do not often consider the social impact of law, by which I mean how will ordinary people react to the law. Stare decisis has the social value in that it signals to people what the law is; that they have to obey the law; that their case is not that unique. Stare decisis is a critical part of deterrence against social disorder.

The law professor I paraphrased above also noted that lawyers also often do not prefer the hard rules that would appeal to programmers. I think this is a flaw in legal training; a flaw that can be seen in the chaotic difference between the Restatement of Agency, Second versus the Restatement of Agency, Third. In 'Second, there are clear conditions and rules for various agency matters. A layman can read and understand 'Second and incorporate those rules into daily business. But the same cannot be said about 'Third. In 'Third, there are no hard and fast rules, reflecting no doubt the subsequent case law and the noted distaste that lawyers and judges have for hard rules. Restatement Third appears to be chaotic and without any clear rules. Not only was 'Second apparently ignored (but frequently cited) most of the time, but no new rules are to found. Restatement Third is just a disordered mismash of conflicting conditions found in recent cases. According to Restatement, Third, one can apparently reach any outcome, and there are apparently no rules that can be incorporated into daily business. In my personal daily business, I try to follow Restatement of Agency, Second and hope for the best.

In summary, it seems to me that even allowing a Court the leeway to find different facts to avoid stare decisis in the Law of Agency has not worked out so well. Even that small weakening of stare decisis appears to be a bad thing.
8.18.2009 12:54pm
martinned (mail) (www):

Without SD, I don't think it matters that Dickerson was 7-2.

That depends on why it was 7-2. If it was 7-2 because many justices adhered to the doctrine of SD, the vote is irrelevant. But if those 7 justices voted the way they did because they agree with the result, this certainly does matter.

Point taken about the justices who have been replaced since then...

Anyway, I can see them coming out differently, but the key question is whether the result comes out differently enough for the difference to be more than a blip on the radar. The claim is that the result of imagining the absence of stare decisis is a vastly different legal landscape. To back up that claim, one would need to suggest important precedents that would be overruled completely, and/or key cases that would come out completely differently.

An example would be the prediction that there would be 5 votes to overrule the core holding of Miranda, i.e. the requirement that the warning be given upon arrest. A holding that this requirement is not constitutional, and that Congress can abolish it if it chooses would be about halfway there. It would still be only one example, though...
8.18.2009 12:56pm
ShelbyC:

You think? I'd say the Court is political enough to shy away from overruling popular precedents (or statutes).


Well, I thinks it's so difficult to defend on the merits that it wouldn't be long before you had 5 justices that were appolitical enough to overrule it.
8.18.2009 12:57pm
Kelvin:
Martinned:

WFJAG gave an example of a vastly different legal landscape, where a non SD court overrules itself every few years. (Sounds like political chaos to me).

Of course, its hard for you to imagine what the USSC is like without SD, because SD has been the tradition forever.
8.18.2009 1:11pm
BaryonicLord (mail):
In continental Europe, there is nothing formally called 'Stare Decisis' but the system is in many ways similar. The lower courts follow the higher courts' precedents, and all courts follow their respective national Supreme Court (or equivalent). The Supreme Court follows its own precedent, unless it for some reason decides not to, in which case it overrules its earlier decision.

This is really just accepted as implicit in the idea of a functioning legal system.

There is a theoretical rule to the effect that a judge who wilfully disregards written statute law could be impeached and removed from office, while the same would not apply to a lower court judge who disregards Supreme Court precedent. However, this is largely of academic interest.

More broadly, I think there may be something of a convergence between civil law and common law systems. In civil law jurisdiction, there has long been a recognition that court decision do a lot to shape the law. Common law systems in Europe (mainly England) are very influenced by EU law which of course is based primarily on French civil law.

As I understand the US debate about Stare Decisis in the US Supreme Court, it does seem a little strange to have a 'strong' rule of stare decisis when deciding constitutional issues.

The EC Court of Justice, the closest thing we have in the EU to the US Supreme Court, has in several cases overruled its earlier precedents when strong arguments were put forward that these precedents were incorrectly decided.
8.18.2009 1:25pm
Tritium (mail):

1) Does the Fourth Amendment confer a personal right?
2-5)Answer is No.
6) What is the remedy for a violation of the Fourth Amendment, and how does it apply here? Is there a suppression remedy? Is there a fruit of the poisonous tree doctrine?

1) No, this Constitution is not a human one, but one of Government. It cannot confer rights where it has no power to Constitute nature.
6) Since the Federal Government does not have a constitutional authority over the police power in any state, it is difficult to see how this issue might arise outside of the territories of the United States. They would have to conduct themselves through the state, and the state should determine if the request is reasonable according to their standards for issuance of a warrant, and carrying out of a search and seizure. Justice requires that all loss be compensated for circumstances out of the plaintiff's control. Emotions cannot be paid any reasonable restitution outside of a genuine apology for what had happened.
Due to the fact that the state is conducting the search and seizures, only the state could be harmed by unreasonable searches and seizures. The state, once the federal burdens have been proven, are bound to follow their own rules regarding searches and seizures.

People are completely lost on the fact that the Federal Government is a Government over the states, that governs the interactions between states, and regulate standards and procedures to go buy to decrease future conflict between states. A person living in a state should never have their rights violated by the federal policing power, except when called upon by the state to restore local peace.

The problem occurs when we neglect the intents and purposes for Constituting this Government, all of which can be determined through the Preamble, which restricts interpretations and future amendments to this narrowed scope. Often times, Judges exceed their jurisdiction with the best motives at heart, but later interpretation based on such a case becomes an Evil that is rarely rectified. If they can't connect the dots without previous precedent, then they shouldn't be holding a seat at the Supreme Court.
8.18.2009 1:26pm
matt (mail):
If you really want to see what this would look like, imagine the NLRB decision process writ large. Every single decision could change every couple of years based on the make-up of the court and you would have chaotic and inconsistent law
8.18.2009 1:47pm
martinned (mail) (www):
In continental Europe, there is nothing formally called 'Stare Decisis' but the system is in many ways similar. The lower courts follow the higher courts' precedents, and all courts follow their respective national Supreme Court (or equivalent). The Supreme Court follows its own precedent, unless it for some reason decides not to, in which case it overrules its earlier decision.

If there is really no reluctance to revisit precedent, the result would be chaos, or at least a free-for-all bonanza every time a new justice comes to the court.
8.18.2009 2:02pm
martinned (mail) (www):
Oops, something very strange happened in my previous comment. The first paragraph was quoted from BaryonicLord. My first paragraph disappeared, and my second is still there. The paragraph that's missing essentially just agreed with BaryonicLord.
8.18.2009 2:04pm
ShelbyC:

If there is really no reluctance to revisit precedent, the result would be chaos, or at least a free-for-all bonanza every time a new justice comes to the court.


I'm not sure that would be worse than the status quo. It would probably keep the law centered around the constitution itself, instead of this huge complicated body of precedent, which is probably more chaotic.

Nowadays, when a federal judge rules that the constitution says X, and some nutjob in a compound says, no, the constitution says Y, and a normal person tries to see who is correct by reading the constitution, he will often find that the nutjob is correct.
8.18.2009 2:21pm
troll_dc2 (mail):

Nowadays, when a federal judge rules that the constitution says X, and some nutjob in a compound says, no, the constitution says Y, and a normal person tries to see who is correct by reading the constitution, he will often find that the nutjob is correct.



An example, please.
8.18.2009 2:31pm
einhverfr (mail) (www):

An example, please.


Ths is an interesting question. The case that comes to mind is medical marijuana where there is no interstate commerce involved.

But this raises the question: Is ShelbyC calling Justice Thomas a "nutjob?"
8.18.2009 2:45pm
martinned (mail) (www):
@ShelbyC: The big problem would be the possibility of going back and forth between two equally plausible but mutually inconsistent alternatives. That could be relatively untextual issues like abortion or Miranda, but also something like whether flag burning is protected speech. Every time a new justice comes to the court, the outcome could switch again, and that would be bad...

FYI, my missing paragraph pointed out that generally courts are careful ("prudent") enough not to engage in such back and forth, but that the US supreme court is so much more politicised than any other supreme court I know of, that there is no way to be sure whether they would act similarly.

An interesting precedent for this question is the history of stare decisis in the UK House of Lords. They did not recognise the doctrine until 1898, and abolished it again in 1966. Nevertheless, they remain extremely reluctant to revisit their previous rulings. (Then again, I'd suspect that very few British citizens could name even a single Law Lord, the House works with panels of 5 Lords and they tend to be unanimous, all of which points to a lower degree of politication than SCOTUS.)

An example of the Lords overruling their own precedent is R v G and another (2003), which was a statute law case. The specific issue of why the Lords decided to overrule their precedent is discussed by Lord Bingham in par. 30-39, by Lord Steyn in par. 57 and by Lord Roger of Earlsferry in par. 70.
8.18.2009 2:46pm
artie:
Some arguments against stare decisis are in this paper I found on the Legal Theory Blog recently, in the article "Stare Decisis is Cognitive Error." The author seems to suggest that stare decisis leads to "wrong" answers and we would be better off without it but rejects the idea that things would come to a complete impasse.
8.18.2009 2:56pm
frankcross (mail):
Orin, finally getting back to you. You are correct that past precedents are biased by judges failing to adhere to the law. But that defeats the point that precedent complicates decisions, because current judges may not adhere to the law either.

The prospect that a past precedent is a bad one is no more likely than the prospect that a current decision, unaffected by precedent, will be a bad one.
8.18.2009 3:13pm
ckirksey (mail):
Anyone:
I didn't get an answer for my previous question so let me try again.

When the SCOTUS decides a case by a majority of say 5 to 4 is the majority vote of five set by law or is this a rule of the courts? Are the actual really just rules from specific laws? Or did congress just grant the courts the right to set their own rules? Just asking. Thanks.
8.18.2009 3:22pm
einhverfr (mail) (www):
Jam:

Can't use ecclesiastical Latin as an authority here. That would violate the Establishment clause and the Separation of Church and State ;-)
8.18.2009 4:17pm
ShelbyC:

An example, please.

...


But this raises the question: Is ShelbyC calling Justice Thomas a "nutjob?"



At the risk of re-offending, how 'bout incorporation of the establishment clause?

The contracts clause?

Most folks reading the constitution wouldn't give the commerce clause the expansive reading the federal courts do.

The draft as applied to most modern wars is probably pretty clearly unconstitutional.

Miranda and the fifth amendment.
8.18.2009 4:39pm
Jam:
Many of the opiions expressed makes me realize how much "we are a nation of laws and not men" is bunk.

And already we have SCOUTS members that reach conlusions and cherry pick precedents to justify those conclusions.

So, how exactly no SD is worse? Oh, yeah. That rulings may have to give the benefit of doubt to individuals rather than the government.

Cases may be similar but they are all different anyway.
8.18.2009 5:07pm
Kelvin:
Somehow, I don't think you would say that, Jam, when your contract is interpreted against you, so you lose and the next guys contract, that says the same thing, is interpreted, the opposite so he wins, or the guy before you gets the right to confront witnesses in his trial but you don't, just because it's a different case and a different day.
8.18.2009 6:20pm
Tritium (mail):
The entire idea behind a "Republican form" is so that in all acts by whichever branch, bound to support the Constitution, and any amendments that support the constitution, is to provide a foundation from which the only source of Justice can be determined, which should remain consistant, regardless of precedent.

Precedent to Justice is like Speculation is to sound investment. It allows for the Supreme court to disregard their oath to support the constitution, and instead avoid Justice altogether. They wouldn't require a case to come before them to protect the Constitution from continued breaches, that over time become precedent in legislative power.

Much like the question comes up.. Under what constitutional authority does congress have to provide a national healthcare system? Currently, the popular answer is, "What do you think Medicare is? How stupid can you be?" And they avoid answering the question altogether. (I'm not against the idea, just against breaching the Constitution, as if it were some meaningless suggestion on how to proceed.)

Was it the intention of the founding fathers for congress to coerce states to pass laws, or even allow a system to exist where the federal could influence amendments by withholding funding for critical projects, or mandate certain laws be passed and enforced according to the Federal authority?

The Constitution of the United States is not Supreme to the State Constitutions. The only limitations are the ones they consented to when they ratified the constitution. Should an amendment have been proposed that said all the tax burden is to be on Texas alone, it is very likely that 3/4's of the states would agree, yet Texas would refuse. Does that give the authority to force them to comply with a majority of the states? It did not, nor was it ever intended that anything as binding as the Constitution, deriving its powers solely from the people of the several states, could have the obligation removed at the approval of a State.

The Idea of an amendment has a broad enough scope to include alterations is defective. Only the people through conventions, have the authority to make alterations, when it becomes necessary for their continued happiness. The amendment may not add new subjects, but must only clarify portions of it, which have been misconstrued over the course of time, which was well understood, and the portion that makes it "valid, to all intents and purposes" are not of the new amendment, but of the Old Constitution, as it is clearly laid out in the PreAmble. The Preamble is the Rosetta Stone of a Bill, or Constitution, in order to figure out the founding fathers intent when it was first established.

But precedent in a Republic is meaningless because it has no force of law. They are bound by law only, and to make a decision based upon precedent is no better than determining a persons guild, but other people charged witht he same crime. And when determinations are made, they must be made in accordance to the Preamble, otherwise there will never be Justice, there will never be happiness, nor security.

To Secure to ourselves and our posterity... meaning that the entire document down to each and every clause delegating powers as well as conditions to them, is secured for the people in the form of the written constitution.

If the constitution is truth, then all that is made pursuant to it is also truth. Anything contrary is a lie, and is null and void. A precedent tries to create a Supreme Commonlaw of Interpretation, but if the decision doesn't support the constitution, it must be an attack. And to withhold judgement in support of the Constiution is no different than being an accomplice to a bank robbery. And the longer precident is used, the less understood the Constitution becomes.
8.18.2009 7:37pm
Jam:
Kelvin: huhhh???
8.18.2009 11:49pm
Larry Fafarman (mail):
In his opinion in Hein v. Freedom from Religion Foundation, Justice Scalia described a situation where justices went too far in trying to follow stare decisis:
Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today's plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel. See Freedom From Religion Foundation, Inc. v. Chao, 447 F. 3d 988 (CA7 2006) (Flaum, C. J., concurring in denial of rehearing en banc); id., at 989--990 (Easterbrook, J., concurring in denial of rehearing en banc) (describing our cases as "arbitrary," "illogical," and lacking in "comprehensiveness and rationality"). We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it.

My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that "[t]he life of the law has not been logic: it has been experience." O. Holmes, The Common Law 1 (1881). But what experience has shown is that Flast's lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. 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.
8.19.2009 1:44am
martinned (mail) (www):

When the SCOTUS decides a case by a majority of say 5 to 4 is the majority vote of five set by law or is this a rule of the courts? Are the actual really just rules from specific laws? Or did congress just grant the courts the right to set their own rules?

AFAIK, the Constitution no more says how many votes it takes in SCOTUS than how many it takes in Congress. The result is that both vote by simple majority. If another voting rule is called for, the constitution will say so. Whether congress could enact a different voting rule, I don't know, you'd have to ask the Court.
8.19.2009 5:00am
einhverfr (mail) (www):

When the SCOTUS decides a case by a majority of say 5 to 4 is the majority vote of five set by law or is this a rule of the courts? Are the actual really just rules from specific laws? Or did congress just grant the courts the right to set their own rules?


A much better question is what happens when you have a 3-3-3 ("Opinion of the Court" and two "Concurring Opinions," scare quotes due to the difficulty in determining appropriate weight on each) as you had in Grokster?

Is there a point where the only significance one can draw is the narrowest agreement between the three opinions? Of does each one draw different lines from each?
8.19.2009 11:41am
Larry Fafarman (mail):
einhverfr said,
A much better question is what happens when you have a 3-3-3 ("Opinion of the Court" and two "Concurring Opinions," scare quotes due to the difficulty in determining appropriate weight on each) as you had in Grokster?

Yes, a lack of a majority opinion is a big problem. For example, in Regents of the Univ. of Calif. v. Bakke, Justice Powell's opinion approving non-quota minority preferences is often assumed to be a binding precedent, even though no other justice joined that opinion. In the Dred Scott case, there were nine separate opinions (two of them definitely dissenting), but Chief Justice Taney's opinion is generally assumed to be the opinion of the court.

In decisions where there is no majority opinion, the courts have tried to apply something called the "Marks rule." However, the Supreme Court has said that the courts have found it difficult or impossible to apply this "Marks rule" or have disagreed about whether the Marks rule should be applied in specific instances. In Nichols v. United States, 511 U. S. 738, 745-746 (1994), the Supreme Court said,

In Marks v. United States, 430 U.S. 188 (1977), we stated that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' " Id., at 193, quoting Gregg v. Georgia, 428 U.S. 153, 169, n. 15 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldasar. A number of Courts of Appeals have decided that there is no lowest common denominator or "narrowest grounds" that represents the Court's holding. See, e. g., United States v. Castro Vega, 945 F. 2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F. 2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F. 2d 341, 345 (CA7 1983), cert. denied, 465 U.S. 1068 (1984). Another Court of Appeals has concluded that the holding in Baldasar is Justice Blackmun's rationale, Santillanes v. United States Parole Comm'n, 754 F. 2d 887, 889 (CA10 1985); yet another has concluded that the "consensus" of the Baldasar concurrences is roughly that expressed by Justice Marshall's concurring opinion. United States v. Williams, 891 F. 2d 212, 214 (CA9 1989). State courts have similarly divided. . . .We think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts which have considered it.


==========================

Is there a point where the only significance one can draw is the narrowest agreement between the three opinions? Of does each one draw different lines from each?


In Hein v. Freedom from Religion Foundation, the opinions of a majority of the justices actually expressly opposed what is assumed to be one of the holdings of the court, that holding being that taxpayer-standing in establishment clause lawsuits is available where there is Congressional allocation of tax money but not where there is executive branch allocation of tax money [link] [link] The Marks rule says "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds," but in Hein the only majority concurrence on a judgment was on the denial of standing to sue -- there was no majority concurrence on the judgment concerning Congressional funding v. executive-branch funding, even though the latter judgment is considered to be part of the court's decision.
8.19.2009 1:35pm
martinned (mail) (www):

Yes, a lack of a majority opinion is a big problem.

Yes, God forbid one would actually have to understand the opinions to see which legal positions were endorsed by how many justices! The Marks rule seems to imagine such fragmented cases as a set of concentric circles, where one opinion is clearly the narrowest, and therefore endorsed by all justices in the majority, and all other concurrences are successively less narrow, and therefore endorsed by fewer.

In reality, the majority in a 7-2 fragmented case may well have several cores. As long as the justices do their job correctly, the different legal positions that are endorsed by at least 5 justices are not mutually inconsistent, but there is no reason to believe that all legal propositions that have such majority support have the support of the same set of justices.

I'm not sure why this matters for the current subject, though. Legal propositions that are endorsed by a (simple) majority of the justices, and which are not dicta, are binding precedent. If that doctrine did not exist, lawyers would have to be more careful about the arguments that underlie the precedent, at least as long as the same justices remained on the bench.
8.19.2009 2:05pm
Larry Fafarman (mail):
IMO precedents should be applied for their persuasive value only, except perhaps where overturning a precedent would cause a real hardship to people who relied on the precedent. If a litigant or a judge thinks up a new angle that clearly justifies overturning or modifying a precedent, why should that litigant or judge be penalized because of others' failure to think up that angle?
8.19.2009 2:28pm
einhverfr (mail) (www):
Martinned:

In the case I cited, there was an "opinion of the court" endorsed by 3 justices and two other concurring opinions also endorsed by 3 justices each. The opinion was 9-0 that Grokster lost and that Betamax didn't apply as precedent.

However the court was divided on:
1) What Betamax protected
2) Whether Betamax should be revisited
3) What rule should replace Betamax if any.

In general I thought that one way to read the set was to see the opinions as: Main opinion (iirc Roberts), rebuttal and dissent in part masquerading as concurrence (Ginsberg), final statement and rebuttal to Ginsberg (Breyer). Thus I would prefer to read the Opinion of the Court and the Breyer concurrence together and leave out Ginsberg's. However I can imagine other readings.

Now let's look at a worse example: Hamdi v. Rumsfeld.

Here you have a clear plurality opinion of 4 justices, a very, very narrow concurrence of Souter and Ginsberg (really dissent masquerading as a concurrence), a flat-out dissent by Stevens and Scalia, and a flat-out dissent by Thomas. Mark's Rule here is problematic. The Souter dissent basically could be summarized as "I am very sympathetic to Scalia's dissent but we can't really resolve this deadlock so therefore I am going to file my dissent as a concurrence instead."

How does one pull ANY binding precedent from such a case in any reasonable way? Mark's Rule, rigidly applied, would mean that American citizens designated enemy combatants have some due process rights, but in fact there is absolutely no guidance in such an approach from such decision.
8.19.2009 8:04pm
martinned (mail) (www):
@einhverf: If there is no legal proposition in the case that is endorsed by a majority of the court, that means the case has no precedential value, at least not the binding kind. Whether that is true in a specific case is something I'd have to consider after (re-)reading the case.
8.20.2009 5:05am
Stephen Goldstein (mail):
I'm not a lawyer. I was trained as a scientist which may account for my seeing an analogue between the limits of stare decisis and the scientific method, at least in so far as the history of science includes theories which are overturned (sometimes only in part) when new information demonstrates an inadequacy.

A few years ago, in discussing President Bush's Supreme Court nominees, one of my liberal friends brought up the subject of stare decisis and expressed the common concern that new, conservative justices might not respect the principle, especially, some were worried, in the matter of Roe v Wade.

I countered that, it seemed to me, stare decisis was less a "principle" than a "predisposition" and cited my favorite example of Plessy v Ferguson and the acceptance of "separate but equal," until Brown v Board of Education.

Just as any scientific theory is subject to being thrown out when conflicting evidence is found, I asserted that judicial decisions are, in effect, simply waiting for what I termed, "a better brief."

Yes, I know, this is an over simplification because while a scientific theory can be overturned with the discovery of conflicting, empirical evidence, a "better brief" in the context of judicial decisions may involve better argumentation and subjective evidence.

Anyway, that's what I think.
8.20.2009 9:42am
Larry Fafarman (mail):
martinned said,
@einhverf: If there is no legal proposition in the case that is endorsed by a majority of the court, that means the case has no precedential value, at least not the binding kind.

Nice in theory, but it doesn't always work that way in practice. The syllabus of Hein v. Freedom from Religion Foundation flatly states that the Supreme Court held that taxpayer standing in establishment clause cases is available where there is Congressional allocation of tax funds but not where there is executive branch allocation of tax funds, and this holding is generally regarded as binding precedent --
Respondents argue to no avail that distinguishing between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion is arbitrary because the injury to taxpayers in both situations is the same as that targeted by the Establishment Clause and Flast — the expenditure for the support of religion of funds exacted from taxpayers. But Flast focused on congressional action, and the invitation to extend its holding to encompass discretionary Executive Branch expenditures must be declined.

But though the above finding is considered to be binding, it was expressly opposed in the written opinions representing six of the nine justices. [link] [link]. Souter's four-justice opinion said,
the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent . . .

And Scalia's two-justice opinion agreed, saying,
As the dissent correctly contends and I shall not belabor, see post, at 3--4 (opinion of Souter, J.), Flast is indistinguishable from this case for purposes of Article III. Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability . . . .

einhverfr said,
Mark's Rule, rigidly applied, would mean that American citizens designated enemy combatants have some due process rights . . .

There is no one way of "rigidly" applying Marks Rule -- there are different ways. For example, Wikipedia says,
The Marks Rule has raised the following schools of thought regarding the appropriate basis for determining the holding in such fractured cases: (a) the narrowest analysis essential to the result derived from a combination of all concurring opinions; (b) the concurring opinion offering the narrowest rationale; or (c) only those parts of the concurring opinions which overlap and arrive at the same result. For example, if one follows the first interpretation, then the holding in the case should be viewed as the narrowest rationale supported by all of the concurring opinions read together as though it were a single majority opinion, and where there is a conflict, the opinion based on the narrowest ground governs. Followers of the second rationale would find the concurring opinion offering the narrowest analysis to be the holding. Whereas, under the third interpretation, only the rationale(s) common to all concurring opinions which arrive at the same result(s) (and to the exclusion of all other rationales) is considered the holding.

The above discussion in Wikipedia does not mention the important issue of whether a particular finding clearly has the support of a majority of the justices. I agree with martinned that a particular finding should not be considered binding unless it clearly has such support -- but as I showed above, a finding in Hein is generally accepted as binding even though that finding was expressly opposed by six justices. However, if findings are considered binding only if they clearly have the support of a majority of the justices and there is no such finding in a given case, then -- as martinned pointed out -- the case would have no value as binding precedent. Also, where there is no majority opinion, IMO the justices should try to coordinate their opinion-writing so that it is clear where they stand on issues raised in the opinions of other justices.
8.21.2009 11:35am

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