# Judicial system.. why is stare decicis so sacred? **URL:** \ **Category:** Great Debates\ **Created:** [November 5, 2010, 1:29pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571 "2010-11-05T13:29:35Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [November 5, 2010, 1:29pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/1 "2010-11-05T13:29:35Z")
I know that it is often difficult to understand and interpret the constitution…and then apply it to changing circumstances. It seems however, that once a judge or a few judges think they have it figured out then that’s it…end of story. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [November 5, 2010, 1:32pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/2 "2010-11-05T13:32:04Z")
It’s to make the law more predictable, so that people know what the legal consequences of their actions are. ---
**Author:** ![Mr.Excellent](https://avatars.discourse-cdn.com/v4/letter/m/f19dbf/32.png) [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)\ **Post date:** [November 5, 2010, 2:06pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/3 "2010-11-05T14:06:54Z")
> [@Giles](#): > > It’s to make the law more predictable, so that people know what the legal consequences of their actions are. Or, as the plurality said in _Casey_: “Liberty finds no refuge in a jurisprudence of doubt.” (I love that line). ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [November 5, 2010, 3:08pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/4 "2010-11-05T15:08:33Z")
> [@What\_the](#): > > I know that it is often difficult to understand and interpret the constitution…and then apply it to changing circumstances. > > It seems however, that once a judge or a few judges think they have it figured out then that’s it…end of story. N.B.: The principle of _stare decisis_ is **much** older than the United States Constitution. And there is never an “end of story” in the process. No judge can make any ruling that a higher or later judge cannot reverse. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [November 5, 2010, 3:14pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/5 "2010-11-05T15:14:09Z")
What you actually seem to be objecting to, **What,** is that judges get to say with authority what the Constitution does or does not mean, and you don’t. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 5, 2010, 3:19pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/6 "2010-11-05T15:19:42Z")
> [@What\_the](#): > > I know that it is often difficult to understand and interpret the constitution…and then apply it to changing circumstances. > > It seems however, that once a judge or a few judges think they have it figured out then that’s it…end of story. As mentioned you do not want a legal system where every time a new judge is present a settled issue gets re-litigated by one side or the other hoping for a different outcome. That said while the legal system is reluctant to overturn precedent they can and do on occasion which can reflect changing times. A classic example would be _Brown v. Board of Education_ overturning _Plessy v. Ferguson_. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [November 5, 2010, 3:23pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/7 "2010-11-05T15:23:56Z")
> [@Whack-a-Mole](#): > > As mentioned you do not want a legal system where every time a new judge is present a settled issue gets re-litigated by one side or the other hoping for a different outcome. Yeah, then you end up with something like present Affirmative Action law. :eek: ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [November 5, 2010, 4:23pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/8 "2010-11-05T16:23:15Z")
It isn’t sacred. If it is wrong, it’s wrong and should be overruled. As Oliver Wendel Holmes, Jr. said, just because we’ve been doing something stupid since the time of Henry IV, doesn’t mean we should keep doing it. Or something like that. It is important so that unless there is very strong reason the law remains predictable and does not depend on who is the judge. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [November 5, 2010, 4:30pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/9 "2010-11-05T16:30:47Z")
_Stare Decisis_ isn’t absolute, it’s more just a principle that decided law should not be overturned without some kind of radically new or compelling reason. We want to have some sense of finality in Supreme Court decisions or else the law becomes capricious, un-static, unreliable and subject to arbitrary political winds. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 5, 2010, 6:45pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/10 "2010-11-05T18:45:19Z")
> [@Diogenes\_the\_Cynic](#): > > _Stare Decisis_ isn’t absolute, it’s more just a principle that decided law should not be overturned without some kind of radically new or compelling reason. Like wanting to keep your job. See _West Coast Hotel v. Parrish_ ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [November 5, 2010, 8:47pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/11 "2010-11-05T20:47:46Z")
> [@Diogenes\_the\_Cynic](#): > > _Stare Decisis_ isn’t absolute, it’s more just a principle that decided law should not be overturned without some kind of radically new or compelling reason. We want to have some sense of finality in Supreme Court decisions or else the law becomes capricious, un-static, unreliable and subject to arbitrary political winds. > [@Saint\_Cad](#): > > Like wanting to keep your job. > See _West Coast Hotel v. Parrish_ Rubbish. Justice Owen Roberts, the swing vote in _Parrish_, had already voted to affirm in December 1936, and was apparently thinking hard about _Adkins_ by March of that year. Roosevelt’s court “reform” plan was unveiled in 1937, and never threatened anybosy job anyway. > [@](#): > > ``` > [After Justice Roberts resigned from the bench Felix Frankfurter prevailed upon him to explain his motivations in his vote in the Parrish case. Ten years later Frankfurter published Roberts' Memorandum in the December, 1955 issue of the University of Pennsylvania Law Review] > > ``` > > A petition for certiorari was filed in Morehead v. Tipaldo, 298 U.S. 587, on March 16, 1936. When the petition came to be acted upon, the Chief Justice spoke in favor of a grant, but several others spoke against it on the ground that the case was ruled by Adkins v. Children’s Hospital, 261 U.S. 525. Justices Brandeis, Cardozo and Stone were in favor of a grant. They, with the Chief Justice, made up four votes for a grant. > > When my turn came to speak I said I saw no reason to grant the writ unless the Court were prepared to re-examine and overrule the Adkins case. To this remark there was no response around the table, and the case was marked granted. > > Both in the petition for certiorari, in the brief on the merits, and in oral argument, counsel for the State of New York took the position that it was unnecessary to overrule the Adkins case in order to sustain the position of the State of New York. It was urged that further data and experience and additional facts distinguished the case at bar from the Adkins case. The argument seemed to me to be disingenuous and born of timidity. I could find nothing in the record to substantiate the alleged distinction. At conference I so stated, and stated further that I was for taking the State of New York at its word. The State had not asked that the Adkins case be overruled but that it be distinguished. I said I was unwilling to put a decision on any such ground. The vote was five to four for affirmance, and the case was assigned to Justice Butler. > > I stated to him that I would concur in any opinion which was based on the fact that the State had not asked us to re-examine or overrule Adkins and that, as we found no material difference in the facts of the two cases, we should therefore follow the Adkins case. The case was originally so written by Justice Butler, but after a dissent had been circulated he added matter to his opinion, seeking to sustain the Adkins case in principle. My proper course would have been to concur specially on the narrow ground I had taken. I did not do so. But at conference in the Court I said that I did not propose to review and re-examine the Adkins case until a case should come to the Court requiring that this should be done. > > August 17, 1936, an appeal was filed in West Coast Hotel Company v. Parrish, 300 U.S. 379. The Court as usual met to consider applications in the week of Monday, October 5, 1936, and concluded its work by Saturday, October 10. During the conferences the jurisdictional statement in the Parrish case was considered and the question arose whether the appeal should be dismissed on the authority of Adkins and Morehead. Four of those who had voted in the majority in the Morehead case voted to dismiss the appeal in the Parrish case. I stated that I would vote for the notation of probable jurisdiction. I am not sure that I gave my reason, but it was that in the appeal in the Parrish case the authority of Adkins was definitely assailed and the Court was asked to reconsider and overrule it. Thus, for the first time, I was confronted with the necessity of facing the soundness of the Adkins case. Those who were in the majority in the Morehead case expressed some surprise at my vote, and I heard one of the brethren ask another, “What is the matter with Roberts?” > > Justice Stone was taken ill about October 14. The case was argued December 16 and 17, 1936, in the absence of Justice Stone, who at that time was lying in a comatose condition at his home. It came on for consideration at the conference on December 19. I voted for an affirmance. There were three other such votes, those of the Chief Justice, Justice Brandeis, and Justice Cardozo. The other four voted for a reversal. > > If a decision had then been announced, the case would have been affirmed by a divided Court. It was thought that this would be an unfortunate outcome, as everyone on the Court knew Justice Stone’s views. The case was, therefore, laid over for further consideration when Justice Stone should be able to participate. Justice Stone was convalescent during January and returned to the sessions of the Court on February 1, 1937. I believe that the Parrish case was taken up at the conference on February 6, 1937 and Justice Stone then voted for an affirmance. This made it possible to assign the case for an opinion, which was done. The decision affirming the lower court was announced March 29, 1937. > > These facts make it evident that no action taken by the President in the interim had any causal relation to my action in the Parrish case. ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [November 5, 2010, 10:10pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/12 "2010-11-05T22:10:41Z")
If every case were examined _de novo_, identical cases would have different outcomes from one month to the next. There has to be a court of the final instance, or else no legal issue would ever be certain. ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [November 6, 2010, 6:02pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/13 "2010-11-06T18:02:13Z")
Incidentally, certain civil law systems disavow stare decisis, although they may have something that mimics it in practice: > [@](#): > > Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to Stare decisis and dictates that the Court’s decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedents established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedents by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d’État in France are recognized as being bodies of a quasi-legislative nature. > > The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions are extremely wordy and go into great detail as to the how the decision was reached. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent for future cases. > > By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves. > > In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is. ([Wikipedia](http://en.wikipedia.org/wiki/Stare_decisis#Civil_law_systems)) ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [November 7, 2010, 4:23pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/14 "2010-11-07T16:23:09Z")
As **matt\_mcl** alluded to, stare decisis is important in the US because we inherited the Common Law system of Britain, in which precedent is a pivotal part of the system. ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [November 7, 2010, 4:45pm UTC](https://boards.straightdope.com/t/judicial-system-why-is-stare-decicis-so-sacred/559571/15 "2010-11-07T16:45:27Z")
> [@Lumpy](#): > > As **matt\_mcl** alluded to, stare decisis is important in the US because we inherited the Common Law system of Britain, in which precedent is a pivotal part of the system. And one thing that’s entertaining about Canadian law, I understand, is our bijural system that combines common law (in the rest of the country) with civil law (in Quebec). When the two meet, it can get a bit hectic. I am not a legal scholar so I don’t know exactly how Quebec civil law handles stare decisis, except that AFAIK Supreme Court decisions are binding on Quebec courts.