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.

Tuesday, July 14, 2009

The Status and Value of Stare Decisis




With the nomination hearings of Judge Sonia Sotomayor to fill the vacancy on the United States Supreme Court underway, it is inevitable that the issue of stare decisis will eventually be addressed. Judge Sotomayor has anticipated the inevitability by raising in her introductory remarks the primary duty of a judge to fidelity to the law. That is a wonderful expression—fidelity to the law. But what does it mean? I have thought about this critical matter that must be of interest to Catholic legal theorists over the past few days. In order to clarify my own thinking about fidelity and the role of stare decisis, I have come up with a hypothetical line of questions to a judicial nominee and some possible answers.


Senator X:

Judge, we all recognize that fidelity to the law must respect the principle of stare decisis, but from your perspective do they mandate strict adherence to past decisions of the Supreme Court of the United States?


Judicial Candidate:

Clearly, Senator, fidelity to the law and respect for the principle of stare decisis are and must remain vital elements of the role law must have in our juridical institutions and the rule of law in our society. They ought not to be tampered with in most circumstances without good reason for doing so.


Senator X:

Yes, Judge, but does a judge who possesses the jurisdictional competence to do so have any latitude for altering the impact of judicial precedents? Isn’t there a very strong presumption that precedents are valid and must not be tampered with under the doctrine of stare decisis?


Judicial Candidate:

Senator, you ask a most probing set of questions. I shall do my best to respond to each. But let me begin by stating that a federal judge is a member of a coordinate and equal branch of the national government. While a judge’s principal responsibilities differ from those of the Congress or the Executive branch, a judge also shares in the duty to uphold the Constitution of the

United States

. This means there must be respect for the law and its rule. However, this does not preclude a member of the judiciary or a court consisting of several judges to refrain from examining the strength and integrity of the judicial precedents that apply to the case under consideration. A judge must always look at them with an eye that is attuned to the role of reason and the role of facts in establishing, maintaining, or modifying any precedent. A judge must test the principles that are or appear to be applicable to the case in a fashion that places significance on the essential facts and the reasons for applying a legal principle to those facts. A judge must ask: does the principle, the precedent still achieve the objectives for which it was intended to accomplish and what is the legitimacy of such objective?


In short, our legal system is premised upon reason. Reason and its objectivity formulate the legal principles that come together to form the fabric of the law and the need for fidelity to it. But this does not mean that fidelity to the law and stare decisis preclude changes in the law. The legal system we enjoy in this country has evolved since its inception, and the fact of evolution of the law more than suggests the role of change consistent with fidelity and the coherence that is at the core of the rule of law.


Otherwise, Senator, we would not have the ability to ensure that the law is premised on the soundest reasoning that properly acknowledges the role of facts that emerge in the cases that come before judges. The law is established for the long-term. It is or should be laden with objectivity and moral purpose. It should not be compromised by whim or caprice. It must serve both the individual and the society well being tempered with firmness, mercy, and truth about the human condition. It cannot be merely the will of the law maker, the judge, or some constituency that will profit from a particular result without consideration given to the impact that the law and its interpretation will have on all whose lives and welfare are affected.


Senator X:

So,Judge, are you saying that a judicial officer is at liberty to depart from precendent?


Judicial Candidate:

For sound reasons as I have defined and explained tested by fact, yes.


Senator X:

Then, Judge, you’d be willing to see the “legal fabric” as you call it be altered!


Judicial Candidate:

Yes, for good reasons that serve well one and all tested by fact.


Senator X:

By what authority can you do such a thing?


Judicial Candidate:

By the Constitution of the United States and the oath of office we share as officials appointed or elected to uphold it.


Senator X:

But, Judge, from what you are saying then, is there not a threat to fidelity of which you spoke and the overwhelming significance of judicial precedent?


Judicial Candidate:

Senator, with the greatest respect to our Constitution and the need to preserve, protect, and defend it, we must all recognize that unwise or unsound law can be made by judges and legislators. This is why our system allows for Congressional override of judicial decisions, and it also enables judicial review of Congressional and legislative actions. The common denominator underlying each of these actions is a Constitutional empowerment based not on whim or caprice but on sound reasoning. Otherwise, Senator, we’d still be a land of law in which precedents such as Dred Scott and Plessy and rationales such as Korematsu still prevail.



Any thoughts?


RJA sj



Araujo, Robert | Permalink

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