2020 News

Stare Decisis

Supreme Court nominee Amy Coney Barrett has said that a nominee

can’t answer about specific cases, but questions about judicial philosophy should be on the table. … You have a right to know what yardstick you’re using to make those decisions.

Amy Coney Barrett

At the Barrett Supreme Court confirmation hearing, a topic sure to be covered is the concept of ‘stare decisis’.

Stare decisis is a Latin phrase meaning ‘to stand by things decided’. That is, courts are expected to follow the rules of prior decisions. Precedents, the decisions of past courts, are entitled to respect and deference from current courts. The legal scholar William Blackstone described the doctrine of precedent as a general rule that courts would “abide by former precedents, where the same points come again in litigation” unless those precedents were found to be “flatly absurd or unjust” by current courts. An exception to the concept of stare decisis would be a “special justification” or”strong grounds” to overrule precedent.

Today’s courts may, on rare occasion, put aside the principle of stare decisis if it is outweighed by past judicial reasoning that is considered egregiously wrong or unworkable in today’s society. The Supreme Court set aside the principle of stare decisis to outlaw the racist policy of “separate but equal.” The 1896 case of Plessy vs Ferguson involved a man of mixed race who was not allowed to sit in a ‘whites-only’ train car. His case challenging the Separate Car Act went to the Supreme Court. The Court effectively ruled that as long as accommodations were equal, no constitutional protections were violated. The principle of stare decisis allowed the policy of “separate but equal” to stand until it was challenged in the 1954 case of Brown vs the Board of Education of Topeka. The Court, putting aside stare decisis, and ruled that “separate but equal” is inherently unequal, violating constitutional protections under the Fourteenth Amendment. Brown vs the Board of Education of Topeka shows that stare decisis can be put aside in order to bring laws and our ideals into closer alignment.

Stare decisis could also be put aside to achieve other ideals. How might Supreme Court Justice Barrett view stare decisis in deciding a challenge to the religiously controversial abortion decision of Roe vs Wade? Barrett’s 2006 commencement address for the Notre Dame Law School might provide a clue.

… always keep in mind that your legal career is but a means to an end, and … that end is building the kingdom of God

Amy Coney Barrett

Thanks and a tip of the hat to Foxtounge for the image “segregated”

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