Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 31, 2005

Catholic Social Thought and a Theory of Precedent?

In doing a public-radio interview this morning on the Alito nomination, I was struck again by how much concerning his ultimate decisionmaking on the Court might turn on his approach to precedent (stare decisis).  How much deference should a justice give to past decisions, and what factors should s/he consider -- and in what order of importance -- to decide whether to adhere to or overrule past decisions?

Abortion rights are obviously a major issue in this regard.  But to take just one other issue, Alito has shown some inclination to be vigorous in limiting Congress's legislative power over economic matters.  For example, in a 1996 dissent in U.S. v. Rybar, he argued for striking down the federal law prohibiting the possession of machine guns (I'm not saying that he was incorrect on that; I'm just using the case to raise the issue).  Would he go as far back as Justice Thomas in restricting the commerce power (doubtful), or would he be more like Scalia and Rehnquist, or Kennedy and O'Connor (who have made only moderate cutbacks)?  That question could depend significantly  on the extent to which, even if he thinks the Commerce Power was meant to be narrower than it's become, he nevertheless thinks many of the broad precedents should be followed as a matter of stare decisis.

Constitutional theory about stare decisis and the weigh of precedent is less well developed -- fuzzier -- than are the various theories about the substantive interpretation of the Constitution (originalism, political-process theories, etc.).  And a lot of prudential calculations go into it, including, I think we ought to admit, assessments of the nation's mood (which bears some relation to, even if it's not the same as, the degree of societal reliance on a past decision, which is a reocgnized part of the analysis about whether to follow precedent).  That's why some anti-fuzzy scholars like Mike Paulsen hate for precedent to play any significant role in constitutional decisions.

In our discussions about Roberts and precedent, we've mostly discussed whether Catholic moral positions on substantive questions such as abortion should override any prima facie duty to follow precedent.  I'd like to ask a different question now:  whether Catholic social thought has anything to offer on the question of precedent itself in law and legislation.  Does the tradition have anything to say on the values of stability versus the values of getting some question right?

I'm not asking about Catholic insights on stare decisis as to Church teachings on faith and morals (where there is the argument that the Church doesn't get things wrong, or is at least guided by the Holy Spirit in ways that the Justices are not).  I'm asking about Catholic insights, from the social-teaching tradition, on the issues of stability, reliance, etc., in civil matters.  And could a justice be legitimately informed by Catholic thought (or religious thought, or general moral reasoning) on that general matter?

Any thoughts on this from co-bloggers or readers?



Berg, Thomas | Permalink

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