Never be afraid to get dirty, but be sufficiently sure-footed to avoid the abyss of contamination.

Stare decisis

Souter is retiring, and President Obama gets to appoint his replacement. The New York Times has reported on Obama’s view of the Court:

In interviews, former colleagues and students say they have a fairly strong sense of the kind of justice he will favor: not a larger-than-life liberal to counter the conservative pyrotechnics of Justice Antonin Scalia, but a careful pragmatist with a limited view of the role of courts.

The article goes further to speculate about Obama’s judicial philosophy:

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied. To make his point, Mr. Obama, then a state senator, took students with him to Springfield, Ill., the capital, to watch hearings and see him hash out legislation.

There is currently a controversy surrounding the President’s use of the word “empathy” in deciding the next Supreme Court justice. The controversy is somewhat aggravated by a president whose judicial views are not publicly clear:

Even as law review president, Mr. Obama de-emphasized his own views and instead made himself a channel for those of others. His decision making was “about the group sentiment and what the group majority might agree to,” said Nancy McCullough, a fellow editor.

In class and in conversation, Mr. Obama talked about judges all the time, but in heterodox terms that gave no clear sense of whose work he most prized.

For the rest of this post, I will assume that “empathy” is simply a pragmatic approach that considers the current social and political context when applying law. If the current social and political context is important in applying the law, how can a decision making process be predictable and non-chaotic, not skewed by a fickle public? One solution to this problem is stare decisis, a judicial philosophy that respects past decisions when making new ones. This respect for precedent is described in the Ninth Circuit’s ruling in IRS v. Osborne:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — “to stand by and adhere to decisions and not disturb what is settled.” Consider the word “decisis.” The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not “to stand by or keep to what was said.” Nor is the doctrine stare rationibus decidendi — “to keep to the rationes decidendi of past cases.” Rather, under the doctrine of stare decisis a case is important only for what it decides — for the “what,” not for the “why,” and not for the “how.” Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

There are many good reasons to respect precedent since doing so, if nothing else, leads to some predictability under which one does not make drastic changes unless it becomes necessary. Simply put, “If it ain’t broke, don’t fix it.” If one takes this view, the question then becomes under what circumstances, and how, does one go about reversing precedent if things break? In Dred Scott v. Sandford, the Supreme Court ruled that fugitive slaves could not be guaranteed the rights of citizenship even if they escaped to free states, and to overcome this shocking precedent, the Constitution had to be amended.

Precedent for its own sake is not sufficient grounds for making a decision: Plessy v. Fergusson ruled that segregation could be justified as long as the separate facilities were equal. In 1954, the Supreme Court overturned Plessy in Brown v. Board of Education by ruling that “separate educational facilities are inherently unequal.” Thus, while precedent might deserve respect in some situations, one should not be compelled to treat it as binding in all of them.

But this view creates a natural argument against pragmatism: it can lead to rationally inconsistent decision-making. While this may be true, consistency can suffer from inflexibility, and at least one such approach should be considered with extreme caution. Originalism, as described by Wikipedia, is “a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting.” Currently, the theory is held by four of the current nine members of the Court. Some proponents of originalism argue that it would require one to interpret “cruel and unusual punishment” under the standards of the late 18th century, overturn Roe v. Wade, and invalidate many of the federal laws and institutions created since the New Deal, thereby returning the so-called “Constitution in exile.” 

Originalism is dangerous because original intent is largely interpretive and can lead one to use prejudices about the past when making current decisions. For instance, some originalists have used the theory to argue that the Founders intended the United States to be a Judeo-Christian nation, and freedom of religion should be viewed in this light. Is such an interpretation accurate, or does it reflect a prejudice against the open-mindedness of the Founders? On the issue of religion, one can find a direct contradiction to the Judeo-Christian theory in the US Treaty with Tripoli, which was signed by Founder and President John Adams. It was unanimously approved by the Senate in 1797 and includes the following article:

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

There are other views on judicial philosophy, including minimalism and Justice Breyer’s “active liberty,” as discussed in his book Active Liberty: Interpreting Our Democratic Constitution. However, it is Justice Souter who is leaving the court. Souter, a proponent of stare decisis, will be missed.


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  1. Pingback: Past Posts « Dirty Hands

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