Tuesday, November 15, 2005

On Stare Decisis and Interpretation

Since it’s been a few days since I’ve posted something esoteric, I thought I would jump into the debate over stare decisis and interpretation started by Publius over at Legal Fiction. I in no way intend to preempt Paul’s discussion of Publius’s post, as for one thing I am sure we will cover different ground, and for another because I’m genuinely interested in what he has to say. Considering that the original post dealt with Edmund Burke and originalism, Paul has an inherent advantage. One could say that taking on these two subjects and arguing with Paul is a bit like taking a knife to a gun fight, but I’m pretty confident I can add something here.

First, we have to define our terms. After all what is this stare decisis notion anyway and why should we care? Simply translated from the Latin, the phrase stare decisis means to “stand by things decided.” Applied to law, and specifically applied to Constitutional Law in the United States, the phrase has two distinct applications. The first arguably applies vertically, by this I mean that decisions of a “higher court” are binding on decisions of a lower court. In other words, if the Supreme Court decides that in cases involving X the outcome is constitutional (or more commonly permitted by the statute), then Federal Courts of Appeal and Federal District Courts are bound to make the same finding in other cases involving X. Of course one way to deal with this is to distinguish subsequent cases from the first by attempting to show why it does not involve X, but we’ll save that discussion for another time. The second application and the one that will be the subject of the rest of this discussion is the horizontal application of stare decisis. In other words, stare decisis is, in part, the notion that the Supreme Court’s decisions have some binding effect and, therefore, the Court itself has some “obligation” not to overrule or reverse its previous decisions with respect to similarly situated cases.

Next, originalism, we’ve discussed this before and I don’t really have anything new to add to the existing definitions, only to stress that there are at least two schools of thought currently operating on the Supreme Court, Scalia’s and Thomas’s and they are different. In fact, one of the main differences deals with how the notion of how the concept of stare decisis is incorporated and applied.

Okay, now to the meat of the discussion. Publius attempts to argue that Thomas’s originalism, namely an originalism that largely rejects stare decisis, is not “conservative” or I should say not consistent with a Burkean notion of conservatism. Here’s where I think Paul and I will part ways as he’s much more equipped to discuss this aspect of the argument. What I want to address is the conflation of the two concepts. In my opinion, stare decisis is neither conservative nor liberal/progressive, but rather is inherently valuable to the law in and of itself. Phrased another way, it doesn’t much matter what “theory of interpretation” one adopts because stare decisis is a separate and distinct concept deserving of its own discussion of its own merits independent of interpretive theory. Thus, so-called “originalists” ought to adhere to stare decisis and so-called “living constitutionalists” ought to as well, not because stare decisis is always beneficial or always produces the result consistent with the interpretive theory, but because of stare decisis’s inherent value.

Now let me stress that stare decisis is not a suicide pact. The Court has never held that its prior decisions are immutable, regardless of what interpretive theory is utilized. I don’t take that position either, at least not with respect to “horizontal” stare decisis (“vertical” stare decisis, on the other hand, is another matter). Thus to me the real question is whether “stare decisis” itself is Burkean conservative, and not whether an originalist acceptance and adherence to stare decisis is consistent with conservative principles.

Stare decisis lends stability and predictability to the law. These traits are desirable especially considering the type of “common law” court system that we by and large have in this country. Some, like Justice Scalia, have argued that when it comes to the Constitution, the United States is not a “common law” system, but rather a civil law system, and, therefore, stare decisis plays a slightly different role, and is deserving of less deference. Justice Thomas, on the other hand, takes the view that stare decisis is not applicable at all to Constitutional decisions and, thus, it is entirely appropriate for the Court to disregard or reverse previous decisions whenever necessary. Presumably, of course, Thomas favors taking this action primarily in cases where the precedent is, in his opinion, contrary to the original intent of the framers of the Constitution. Of course, there appears to be nothing in this view of the Court’s authority that would prevent future, non-originalist, judges from simply reversing Thomas’s decisions employing the same rationale, namely that stare decisis does not apply to Constitutional decisions. Thus, it is my opinion that Thomas’s position undermines and ultimately destroys the very stability and predictability that Courts are designed to provide the legal system. Hence, if I had to choose an originalist position, as I’ve stated many time previously, I’d align myself more with Justice Scalia’s originalism than with Justice Thomas’s.

It is worth noting that I have carefully avoided the elephant in the room, namely, when is it permissible for the Supreme Court to reverse its own precedent? The simple answer is that I don’t know what the standard should be or if it is possible to articulate one. One major problem with attempting to devise one is the myriad of existing examples make it difficult to come up with a standard that would permit reversals that seem to have been correct (i.e., Brown v. Board of Education’s reversal of Plessey v. Fergusson) while seeming to prevent ones that have been controversial (i.e., Lawrence v. Texas’s reversal of Bowers v. Hardwick) (although, for what it’s worth, I personally don’t think Bowers was properly decided, though I would have reversed only on the narrow equal protection grounds offered by Justice O’Connor’s concurring opinion. I would not have joined Justice Kennedy’s majority opinion).

Maybe with respect to the standard question the method of interpretation can provide some answers, but it still seems to me to be an unattainable standard. The Court is going to reverse cases for a variety of reasons, some good, some less than ideal, but all cases deserve at least a nod towards stare decisis and then, if a strong rationale presents itself and a compelling argument can be made can the Court precede to reverse or overturn itself. I won’t say that it should never happen, i.e., Roe can be overturned, stare decisis does not, in my opinion prevent such a result. I will, however, argue that such decisions should only occur in narrow, well-deserving situations. To some, Roe clearly meets this standard, to others it does not. (I’m in a third camp, which says that Roe’s result should be upheld, but on alternatively reasoned grounds possibly the Ninth Amendment or the Privileges and Immunities Clause). Either way, stare decisis is a valuable end in itself and should not depend on the interpretive method chosen by a Justice or a Court.


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