By the way, today the Supreme Court gave us some really good examples of exactly why messing around with stare decisis is a dangerous idea. Thank-you to Clarence Thomas, J., for making the point eloquently (though, of course, he was trying to make the complete opposite point!).
Justice Thomas argues for making stare decisis less rigorous.
Oh, and they refuse to do what Thomas, J. wants in the double jeopardy case
Thomas joined the majority on that case, so I’m not sure you can make a good claim that the court did something he didn’t want to do.
I tend to agree with Thomas on this. Stare decisis is a useful value for a court to consider, because you don’t want the decisions of the court to whipsaw around as the composition changes. Courts should be conservative (in the legal sense, not the partisan sense) and avoid rapid changes.
But at some point you have to be willing to buck past precedent because it’s wrong. Otherwise we’d still be stuck with Dredd Scott and Bowers v. Hardwick. Where Thomas and I differ is that he thinks that originalism means that the 9th Amendment means nothing, and any unenumerated right is worthless.
Thomas’ point was that the Court’s enumerated rationale for eventually discarding a previously established point of law is too restrictive. We know that the court will, at times, overturn precedent; Brown v. Board of Ed. is one such example. But Thomas wants to discard a previous decision anytime a majority of the court thinks that the prior decision is “wrong”. This is a dangerous concept. It would completely politicize the Court, in a way that we are already perilously close to experiencing. What is “wrong” to Thomas may be different from what is “wrong” to Ginsberg, for example. If the court moves from correcting obvious error to correcting apparent error, we lose the certaintude of stare decisis. This is not a good thing.
For example, stare decisis is pretty clearly the only reason that Roe v Wade exists still in any form.
I don’t think that’s what Thomas argued, though. He said that a precedent that’s “demonstrably erroneous” should be overturned. Not “apparently wrong”. Yes, the justices disagree on what counts as wrong.
I’m not well-versed in the enumerated rationale for overturning precedent, but a brief googling suggests that one of the points is whether people have relied on the precedent. That seems reasonable to me, but then the question is: How long do we let a bad decision stand because we don’t want to rock the boat. I don’t think there’s an obvious and single correct answer to that.
It took 60 years to overturn Plessy v. Ferguson. Would schoolkids have had access to fairer education a decade earlier if the court had been more willing to disregard precedent? What’s that worth compared to stability?
There are downsides to Thomas’s suggestion, but there are upsides too.
Does that make it good law? If you agree with the policy, do the ends justify the means, or should the courts determine questions of law and let questions of policy be handled by the legislature?
I’ll deal with this first, because it’s easier. The Supreme Court has decided (in 1972) that the Constitution protects the right of women to obtain abortions under certain conditions. Now, this is a question of law; it’s not a policy argument. That is, to answer the question, the court reviewed the relevant law in the area and came to the conclusion that this was true as a matter of law. There was some disagreement, which reflects the fact that what the “law” is is not clear cut.
As a result of this, the various legislative branches (state and federal) are limited in what they wish to do in the way of implementing policies regarding abortion. If a state legislature wants to implement a policy of “no abortion ever”, it cannot do that. Why can it not do that? Because the Court has established that the supreme law of the land (the Constitution) says it cannot.
Now, as time passes, people may re-think that point. What the “law” says may, in the minds of those who explore that, change. At one point, the legal scholars entrusted with stating what the law was said that the Fourteenth Amendment did not preclude “separate but equal” accommodations, schools, etc. The argument provided was not illogical, even though some disagreed even at the time. After substantial time had passed, it became clear to most legal scholars that this statement of what the “law” said was not a correct statement. Please note that Brown v Board of Ed. didn’t over-rule the precedent of Plessy v. Ferguson because of policy reasons. Rather, the evidence adduced at the trial in the latter case showed that the law required a different conclusion. “Separate but equal” schools, it turned out, denied some citizens the “equal protection of the laws.” With this evidence in hand, the Court was correct in re-stating the law as it applied to such cases.
Now, one might argue that such a decision should have happened much more promptly. Indeed, one might argue that the first possible occasion after Plessy was decided should have resulted in a reversal of that precedent. But if that were to happen, then the Court would be engaging in the establishment of policy as law, because the Court would simply have been changing the decision without any reason other than, “We think they were wrong.” As I hope to show below, that’s not a good idea.
Anna plants a tree on her property very close to the border with Bob’s property. Bob complains to Anna that the tree damages him for some reason (the reason is irrelevant). Anna refuses to remove the tree, so Bob sues Anna, asking that the local court instruct Anna to remove the tree. After litigating the matter, the local court’s judge, Zeno, decides that Bob is wrong; the law allows Anna’s tree to exist where she planted it, and enters a finding to that effect, dismissing Bob’s complaint.
Bob, all incensed, goes out to find someone who agrees with his position about the tree. He finds Yelena, who is quite in agreement with him. So Bob works to get Yelena established as a judge on the local court, and is successful. Bob promptly files a new suit, asking that the local court instruct Anna to remove the tree. The case is assigned to Yelena to decide. Bob is quite happy, since he knows Yelena agrees with him.
Question: Do you think that, with no other change in the facts from the first suit, Yelena should rule for Bob? What if Bob’s complaint is something that most people would agree with (that is, the ruling by Zeno in favor of Anna was unpopular)? What if 99% of rational people would agree with Bob?
In general, absent some really, really weird facts, Anna need not worry about what Yelena will decide, because a legal principle called res judicata bars Yelena from reaching a different decision on the same situation already ruled on by Zeno. There’s good reason for this. The parties to a law suit should be able to rely upon the finality of a decision in that suit. As Justice Stewart said,
Bob, however, is a crafty person. Instead of suing Anna for an order forcing Anna to remove the tree, Bob sues instead for monetary damages caused to him by Anna’s tree. His theory is that Anna’s tree is improperly planted, and this has caused him harm, which can be compensated monetarily. He asks the local court to grant him damages.
Question: Should Bob be able to succeed here? Same thoughts as before.
Yelena, if she hears this new case, will still be forced to deny Bob his claim. As part of his new case, Bob still seeks to re-litigate the already determined issue of the legality of the tree’s placement. Res judicata (in it’s strict sense of claim preclusion) doesn’t apply; this is a different claim (damages vs. an order of removal). But collateral estoppel (issue preclusion) will keep Bob from being able to re-litigate the legality of the tree. He’s already been told by the court that he is wrong on this issue. Again, finality and consistency require that the issue not be re-litigated, even if the old decision is demonstrably wrong (e.g.: wrong on the law applied).
Now, suppose that Bob notices that Catarina has planted a tree on HER property exactly as far from the property line she shares with Bob as Anna’s. Bob files a suit against Catarina, asking the local court to force Catarina to uproot her tree. Yelena sighs as this new suit lands on her desk, because unlike Bob, she knows she will very likely have to tell him he is precluded from raising this issue against Catarina by collateral estoppel. In the old common law, CE required mutuality of parties, but the California Supreme Court in 1942 initiated a movement away from requiring the parties in the later case be the same as in the earlier case. As long as the issue is the same, CE can be used as a shield against a claimant from the earlier case. And, even if the person raising the previously litigated result is doing so as the claimant (CE as sword, not shield), there are situations under which he/she will be successful (though these are not as broad as in the case of non-mutuality where CE is used as a shield). The rationale, again, is one of finality and consistency.
Now, finally, suppose that Bob gives up and stops filing lawsuits. But his good friend Donald is just as upset about trees planted by Anna and Catarina along the border of the properties they own with his property. So he files suit, sensing that Yelena will be willing to grant him his request, since she is not constrained by either res judicata or collateral estoppel. But, sadly, he may find out that Yelena will be unwilling to reach a different decision from Zeno because of stare decisis. Since they are judges of the same court, in the absence of some really good reason to reach a different conclusion from Zeno, Yelena will feel that the need for consistency in the court will require that she adopt the determination of Zeno on the issue of the legality of the trees. And, of course, if the decision of Zeno was appealed to a higher court, and decided against Bob, then Yelena will have no choice but to reach the same conclusion in the absence of significant distinguishing facts that would persuade her to reach a different conclusion.
Each of these concepts accomplishes the same goals: finality of decisions and consistency of decisions. We don’t want the court system to become a free-for-all, where the result becomes uncertain, a gamble, with the outcome of similar cases dependent upon the luck of the draw as to who is hearing the matter. Can you imagine what would happen to the Supreme Court if it had a rule allowing it to re-determine issues even after the passage of a very short amount of time, whenever a majority of the judges thought the prior decision was “wrong” (note that Thomas said “demonstrably erroneous”, but keep in mind that, unless the prior decision was 9-0 and all lower courts agreed with the ruling, then EVERY decision can be considered “demonstrably erroneous” because what is “demonstrably erroneous” is in the eye of the beholder; Roe v. Wade was “demonstrably erroneous” to two justices, one of whom later because a Chief Justice of the Court, and those justices stated exactly how it was “demonstrably erroneous” in dissents)? Can you imagine what would happen to the Court? With every change of government from one party to the other, the temptation would be to replace every judge possible (impeachment), or re-constitute the courts (packing, etc.) so that YOUR judges would proceed to over-rule all the precedent from THEIR judges. God help us all, then.
If I may rephrase, would it be correct to say that it became clear that the previous decision was demonstrably erroneous?
I am unconvinced by that description of the difference between the two cases. Here are two quotes from the respective cases
The crucial difference is not different facts or different arguments. The exact same argument in Plessy that was dismissed as fallacious is the crux of the decision in Brown. The link between segregation and racial inferiority wasn’t disputed, it was simply disregarded. The crucial difference is that they realized that callous indifference to black people wasn’t ok.
Does the OP even understand the difference between the responsibilities of the legislative and judiciary branches of government? I think not.