By MARK HENDRICKSON
Associate Justice of the Supreme Court Stephen Breyer wrote a dissenting opinion in mid-May, expressing his displeasure that a majority of his colleagues on the court overturned a four decades old precedent.
Breyer fretted, “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
At issue is the doctrine of “stare decisis”, which holds that Supreme Court decisions should be allowed “to stand as decided” rather than be overturned.
Without arguing the merits of any particular case, the notion that a Supreme Court decision is sacrosanct and irreversible is indefensible on logical grounds and highly problematical on pragmatic grounds in our democratic system…
Why shouldn’t the Supreme Court be free to reverse decisions rendered by earlier courts? It makes a mockery of the ideal of having three coequal branches of government, when the policies of two of them may be undone while the third branch’s rulings are permanently binding.
To assert that a Supreme Court decision can’t be undone implies some sort of judicial infallibility…
Accepting stare decisis as an inviolable principle essentially elevates a Supreme Court majority to the level of a secular papacy endowed with infallibility. This repudiates the democratic nature of the U.S. system, especially since Supreme Court justices, like the pope, are neither elected by the people nor accountable to them, but have lifetime tenure.
Today’s proponents of stare decisis are making a power play. They assert stare decisis as an unchallengeable tenet—a dogmatic orthodoxy to be defended from pesky heretics—in the attempt to delegitimize any move to overturn Supreme Court precedents.
That attitude is arrogant and illiberal. It reminds me of the position struck by the Soviet leadership during the Cold War… There’s another similarity between the stare decisis dogmatists and communists: their distrust of the people and concomitant disdain for democracy.
The communist attitude toward democratic elections is one man, one vote, one time. Once communists have gained power, though, democracy goes out the window and they will oppress the people rather than submit to a democratic election that might reverse their gains. Likewise, stare decisis is invoked to thwart potential reversals.
The desire of stare decisis zealots to thwart legal reform contrasts strikingly with the humility of the founding generation. In his “Farewell Address,” President George Washington, understanding that laws are written by fallible human beings, explicitly rejected any attempt to impose irrevocable constitutional shackles on future generations of Americans. On the contrary, he told the American people that they should amend the Constitution when needed to conform to new realities and understandings…
(O)ur precious common-law system is based on precedent, practical experience, and long held, widely accepted values. Overturning Supreme Court decisions willy-nilly would be disruptive, if not destructive of the stability and continuity that our common law system provides. But precedents must not be regarded as eternal truths written in stone.
Stare decisis must not be exalted as an absolute principle. It must not impose an inflexibility that is incompatible with a society in which there often are multiple (and changing) opinions about right and wrong.
The truth is that Breyer—and others now citing stare decisis—don’t really believe that it is a universally binding principle. After all, they themselves approve of certain past Supreme Court reversals of prior flawed court decisions.
Their current fervor for stare decisis is a matter of expediency. They hope to prevent the five non-Progressive justices on the court from overturning (other) such persistently controversial decisions…
As John Maynard Keynes once said, “When the facts change, I change my mind.”
Supreme Court justices shouldn’t be too proud to follow that advice. The opinions of five justices more than 40 years ago shouldn’t prevent today’s justices from re-examining their premises…
Such momentous decisions should be democratic rather than edicts issued by a minuscule elite.
Stare decisis—a spurious doctrine even in theory—should not be allowed to become an oppressive dogma in practice.
Stare Decisis is a poor excuse for judicial decisions. Was Dred Scott a good basis to preserve slavery? NO! There are many such decisions that could rightfully amended or overturned. I’d suggest multiple of the New Deal decisions were faulty, not to mention Roe vs Wade.
The practice invalidates the long term shifts in our democratic conclusions. The Progressive impetus has largely spent its usefulness. If fact, it has progressively become less of a solution, and more a creator of new problems, like Obamacare. Yet they yell all the louder, and push ever further from the bedrock principles of the Founding.
We need to return to federalism to a greater degree, and allow the States to once again become the laboratories for governmental experiments. Rather than forcing a one-size-fits-all scheme on the disparate States and regions which don’t share the same issues.