Saturday, January 30, 2010
Thanks to Michael P. for offering his thoughtful commentary on the recent Supreme Court decision in Citizens United. The decision has recently been critiqued on the ground that the majority did not follow precedent and undermined stare decisis.
Readers and contributors to the Mirror of Justice may recall that I have, in the past, addressed stare decisis in previous discussions, most recently [here].
The subject of stare decisis and what it is—that is, what is its essence, what is its nature, how is it to be explained and understood—is a topic that requires a robust and extended study. Nevertheless, the recent interest in and debate about stare decisis brought about by the decision in Citizens United merits a concise thought today.
I have expressed the view in the past that what is constitutive of stare decisis often reflects the likes or the dislikes of the speaker. For example, if one likes the decision and reasoning in Bowers v. Hardwick, then Lawrence v. Texas ignored stare decisis. If one is attached to Roe v. Wade, we can imagine forthcoming criticism of a decision that abandons Roe to a footnote in judicial decision-making.
Today I would like to suggest that stare decisis cannot be a doctrine supported by personal or political preferences where the will of the majority or the will of the most influential—be it on a court or in the res puclicae—is determinative of the legal principle to which adherence is expected. Stare decisis—if it is to mean anything to the making and enforcing and interpreting of sustainable, righteous, and moral legal norms—must be coherent with the intellect and the right reasoning that promote norms that are sustainable, righteous, and moral. When stare decisis betrays this coherence, the law is what the law-maker wants it to be, not what it should and must be. Without this formula in mind, stare decisis is a mere political tool that eschews the coherence essential to the vitality of laws that distinguish between right and wrong, truth and falsehood and to the rule of law indispensable to the legal enterprise.
Any thoughts on this?