Understanding Stare Decisis

Confirm Them blogged The Washington Post has an editorial today urging President Bush to choose a nominee who strongly believes in respecting precedent:

[A] nominee who strongly believes in the stability of precedent — the legal principle of stare decisis — is far more likely to garner broad support than a nominee who generally regards past decisions as ripe for overturning. Justice Clarence Thomas is more radical than Justice Scalia not because he has a more radical view of how cases should be decided in the first instance but because of his willingness to overturn age-old precedents. It is far easier to support a nominee whose approach to cases is not one’s own if that nominee treats decisions of past eras with respect and deference.

But this is simplistic. The doctrine of stare decisis is much more subtle than the Post suggests, and any nominee should understand that. Here’s how Justice Louis Brandeis explained it:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right…. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions…. This is strikingly true of cases under the due process clause…

A nominee who agrees with Brandeis would be vastly preferable to a nominee who blindly follows precedent, or a nominee who believes that precedent is more important than the intended meaning of the Constitution. It is worth keeping in mind that the great and historic decision in Brown v. Board of Education overturned a Supreme Court precedent that had stood for 58 years.

The Supreme Court decided in 1992 to create what Chief Justice Rehnquist called a “newly minted variation on stare decisis,” in his dissent. Ironically, the Court’s opinion in that 1992 case (by Justice O’Connor) discarded the version of stare decisis that had been supported by ancient tradition and precedent.

People calling for Stare Decisis to be followed fear that if certain decisions, like Roe v Wade, were reviewed they would be overturned, and they know that they could not persuade the legislature, which is the body that is supposed to make laws, pass a law to reinstate abortion on demand. It seems that is a good reason to reverse it.