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Thursday, July 21, 2022

STARE DECISIS

 Doing a little research into a complex issue as we head into the weekend, as is our wont. And we came across this impassioned defense of stare decisis and precedent and it bears repeating here: 

Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent “demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). This means that something more than “ambiguous historical evidence” is required before we will “flatly overrule a number of major decisions of this Court.” Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 479, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). And the strength of the case for adhering to such decisions grows in proportion to their “antiquity.” Montejo v. Louisiana, 556 U.S. 778, 792, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). Here, as noted, Gamble's historical arguments must overcome numerous “major decisions of this Court” spanning 170 years. In light of these factors, Gamble's historical evidence must, at a minimum, be better than middling.

Gamble v. United States, 139 S. Ct. 1960, 1969 (2019)

And who is the author of this strong defense of precedent? Why none other than Justice Alito. 

Hmmmm.....he has been in the news lately for something....can't put our finger on it.

4 comments:

Anonymous said...

Sent you an email Horace ….

Anonymous said...

Interesting article:

https://www.floridabulldog.org/2022/07/former-justice-state-rep-blast-system-teed-up-renatha-francis/

Anonymous said...

Do you think there is an inconsistency? That was then. This is now.

Anonymous said...

Now do Brown v. Board of Ed. overruling Plessy v. Ferguson.

Does anyone think that was bad idea?

Without taking a position on Dobbs, the way forward is not to make a god of stare decisis. The power of precedent should be real, but it has its limits.

This reminds me a lot of how folks will blame/credit POTUS over gas prices as suits their partisan impulses, happily forgetting that last month they stated that only fools blamed/credited POTUS over gas prices.