How stare decisis Subverts the Law
Jon Roland

How 'stare decisis' Subverts the Law

One of the most important doctrines in Western law is that of stare
decisis, a Latin term of art which means "to stand by decided cases; to
uphold precedents; to maintain former adjudications".[1] In modern
jurisprudence, however, it has come to take on a life of its own, with
all precedents being presumed to be well-founded unbiased legal
decisions, rather than political decisions, and presumed to have both
the authority of the black-letter law on which they are based, plus that
of the precedents on which they are based, so that later precedents are
presumed to be more authoritative than earlier ones.

The doctrine also tends to give great weight to the opinion in the case,
even to the point of treating the opinion as though it was law, even
though only the order and findings have the actual force of law, and an
explanation of how the decision was reached is only dictum. This means
that a poorly-worded opinion can define a set of legal positions that
exceed the bounds of the underlying black letter law, and become the
basis for future precedents, as though it were black letter law itself.

The doctrine tends to disfavor legal argument that precedents were
wrongly decided, especially if they are precedents established at a
higher level in the appeals hierarchy, and to demand the litigants
"distinguish" their cases from adverse precedents, arguing that those
precedents do not apply to the present case because of elements that
make it different from the cases on which the precedents were
established. This can be very difficult to do if there are a great many
recent cases on the same issues which cover most of the possibilities.

The situation can be made more difficult by the rules of most courts
which limit the length of briefs the litigants may file. In working
backward through a long line of wrongful precedents, a litigant can
reach the length limit before the argument can make it back to the
foundations where the chain of precedents began to drift away from its
authority in the black letter law.

The situation can be illustrated by the Venn diagram below, in which the
first set A represents the set of legal positions consistent with the
Constitution, and the points outside the circle represent
unconstitutional positions. It is noted that the boundary of the set is
fuzzy, representing the ambiguity of interpretation at the boundary. The
central point B' represents a court decision whose opinion defines a set
of legal positions consistent with it, shown by the elliptical set with
the letter B at the top, but a portion of that set extends beyond the
bounds of A. The opinion in the next decision C' also falls within A and
defines yet another region C of consistent positions, but which extends
beyond both A and B. Decision D' falls within C, but not A or B, and
further defines a consistency set that extends beyond A, B, and C. The
Decision E' doesn't lie within any of the regions defined by the
previous precedents, but its region of consistency overlaps D and barely
C, the kind of situation that might result from a legal argument that
reaches to get a political decision not based on precedent. Finally, the
last decision F' is based on E defines consistency set F but lies
entirely outside A, B, C, and D.

The problem for jurisprudence, especially constitutional jurisprudence,
is how to get back within A when one's opponent's position is supported
by F and one cannot distinguish precedents taking the argument back to A
within the brief page limits. It may be almost impossible unless or
until one can get the case to the Supreme Court, which can ignore and
reverse its own precedents, but which can take only about 75 cases a
year, and is reluctant to issue sweeping opinions that can cover a large
number of cases that might otherwise deserve to be granted certiorari,
but which will never make it because the litigants are discouraged from
making fundament arguments that might work with the Supreme Court but
which would be disfavored by lower courts.

It is difficult to estimate how many unconstitutional legislative
provisions are adopted each year by Congress, but a plausible number is
more than 20,000, or about as many as the number of bills introduced
each year. There is simply no way that the federal courts can handle all
the cases that might arise under that many provisions. They are almost
forced to rely on the presumption of constitutionality of statutes, but
members of Congress are increasingly reluctant to restrain themselves
from adopting legislation they know to be unconstitutional, but which is
supported by some of their constituents, and passing the duty to the
federal courts of striking legislation that should never have been
passed in the first place.

There would appear to be only two ways out of this predicament: Either
the people must start electing different members of Congress, and demand
that they strictly comply with the Constitution, or else the courts,
especially the Supreme Court, need to start issuing sweeping opinions
which effectively strike down entire blocs of legislation.
The Supreme Court, beginning with the decision in United States v.
Lopez, 514 U.S. 549 (1995), and continuing in 2000 with several
decisions like United States v. Morrison, Docket 99-5 and Jones v.
United States, Docket 99-5739, which roll back the federal criminal
legislation based on the Commerce Clause, is nevertheless still
unwilling to issue sweeping opinions, but prefers to rely on narrowly
constructed opinions that have the effect of introducing confusion and
conflict into the system of precedents, perhaps in the hopes that lower
courts will seize on them to create still more conflicts, which the
Supreme Court will then only have to decide among.
Stare decisis is the way judges seek the safety of the herd.

1. Black's Law Dictionary, 2nd ed., New York: West Pub., 1910.


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