Krauthammer on Judicial Rulings
Charles Krauthammer has a column in the Post about the differences between Justice Scalia and Justice Thomas. In the process, he points out how easy it is for politicians and advocacy groups to distort judicial rulings and why you should never accept at face value that an opinion is wrong just because you or someone else doesn’t like the result:
Justice Thomas: “Dope is cool.”Justice Scalia: “Let the cancer patients suffer.”
If the headline writers characterized Supreme Court decisions the way many senators and most activists and lobbying groups do, that is how they would have characterized the Supreme Court decision this week on the use of medical marijuana in California. It was ruled illegal because the federal law prohibiting it supersedes the state law permitting it. Scalia agreed with the decision. Thomas dissented.
In our current, corrupted debates about the judges, you hear only about results. Priscilla Owen, we were told (by the Alliance for Justice), “routinely backs corporations against worker and consumer protections.” Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine?
The real question is never what judges decide but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.
Spot on. So as I’ve been urging for the last few weeks, in the upcoming Supreme Court confirmation battle, don’t listen to what any group says about a nominee’s previous rulings or legal writings without reading them for yourself. And that includes groups that you might otherwise agree with, whether it’s People for the American Way or the American Center for Law and Justice or anyone else.
Krauthammer goes on to discuss one of the big differences between Scalia and Thomas, which is that Scalia puts far more weight on precedent even if he thinks those precedents are wrong, while Thomas pretty much ignores stare decisis. In that, I tend again to agree with Thomas. Badly reasoned decisions, like the Slaughterhouse cases, continue to distort our jurisprudence. If they are wrong, they should be overturned.
11 Responses to “Krauthammer on Judicial Rulings”
Very well said.
Justice Thurgood Marshall on stare decisis: the “means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.”
Chief Justice Rehnquist echoed Marshall on stare decisis: it “carries such persuasive force that we have always required a departure from precedent to be supported by some ’special justification.’ ”
Clarence Thomas at his confirmation hearing: “stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept.”
I don’t think it’s possible to develop the law in a principled and intelligent fashion if that means having to continue to enforce rulings that were not themselves principled and intelligent. The Slaughterhouse cases were unprincipled and arbitrary and they continue to exert an enormous distorting influence on 14th amendment rulings to this day, over 130 years later. The court should have overruled them a century ago.
I agree with Ed.
These quotes about stare decisis are another example of how the rule of law is often about the law of rules. Sometimes rules followed by the SCOTUS are in place simply to promote efficiency, not because of some grand panacea that they will lead to.
When Justices cite the wonders of any of the justiciability doctrines, or stare decisis, I think they are talking more about efficiency than anything else. The flowery language or calls to the ancient meaning of justice that often surround these statements are, in my view, a means of quelling criticism of the fact that judges sometimes make a particular decision based on something as un-romantic as efficiency.
Maybe stare decisis is good in some cases, and in other cases not so good. Regardless, when it comes to some of these “technical” rules I think the Court tends to be pretty pragmatic.
What would the legal world look like if Justinian’s practice had been followed, that is, absolutely no stare decisis? Are you willing to reverse Cantwell, Everson, and any number of judicial fabrications concerning the Commerce Clause? Epstein is willing to do law and let the chips fall where they may. I think that would also include doing to the fabrication of incorporation what Learned Hand suggest of due process.
“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”
Justice Brandeis, Burnet v. Coronado Oil (1932).
I disagree with Brandeis. Completely. That may be true of relatively insignificant rulings that only have a minor effect on things. But a ruling like the Slaughterhouse cases is huge. It reads an entire clause out of the 14th amendment, a clause that was clearly intended to be a major change to the way our system operates. That has resulted in a bastardization of another clause of the amendment to try and reach the same result and it has distorted 14th amendment jurisprudence for over a century and a quarter.
The problem is with the notion that stare decisis should rule regardless of the question of whether the decision was correct. Surely no this side of David Duke would argue that Plessy should have been upheld under the doctrine of stare decisis despite having been in effect for over 50 years.
The Supreme Court has no force to compel obedience to its decisions. Other branches of government have from time to time failed to comply with constitutional rules. In a few instances the government and private citizens actively resisted both the letter and spirit of the Court’s rulings. For example, Southern states followed a policy of massive resistance to the decision in Brown v. Board of Education (1954), refusing to proceed with the Court’s order to desegregate public schools.
Yet to a remarkable degree, sooner or later other branches of the federal government and state and municipal authorities fall into line, for several reasons. First, there has been a broad historical consensus that Supreme Court decisions are to be respected, so that public opinion in most instances will eventually turn against other branches that resist a Supreme Court ruling, prompting changed public policy through elections. Second, to a large extent the Court itself abides by its own decisions. This principle, known as stare decisis—let the decision stand—tends to make the law consistent and predictable, discouraging people from defying a ruling by hoping that they can go back to the Court to secure a different ruling. Third, other courts, both state and federal, are bound to follow the Supreme Court’s decisions on constitutional and federal law. Officials and private citizens alike who fail to abide by the logic of a decided case can thus be brought back to court.
The principle of stare decisis does not stop the Supreme Court from altering or overturning its own legal precedents. On occasion the Court has dramatically departed from what seemed a settled precedent. In one case the Court waited just three years before it issued a new ruling. The Court ruled in 1940 in Minersville School District v. Gobitis, by an 8-1 vote, that a public school can require schoolchildren to salute the flag, even though doing so violates their religious beliefs.
Much as I dislike much of Thomas’sjudicial philosophy (his inability to recognize the equal protection issue in Lawrence vs. Texas was disturbing), his dissent in the Raich case was spot on, exactly correct, and should have been the majority opinion. It’s a shame that it wasn’t the majority opinion. Maybe if Rehnquist had been in good health, it would have been the majority opinion. It was excellent.
Regarding Rehnquist, it should be acknowledged that the Chief Justice is not just a jurist, he is also the chief manager of the entire federal judicial system. Regardless of what one might think about his judicial philosophy, apparently he has been an excellent manager. He will be sorely missed when he leaves the bench–probably at the end of June. There is no obvious successor who might be as good a manager as he has been.
Regarding “stare decisis,” volumes could be written about that. Stare which decisis? A good lawyer can craft an argument for anything based on “decisis” that has been “stare”d. I know. I’m a lawyer. And I’ve done that. And if you think I’m joking, I’m not.
Stare decisis is like the overwhelming majority of things, something that should not be absolute. It should however be considered in the majority of cases.
As to Plessy and Mr. Duke as a matter constitutional law a case could be made for Plessy and a very good case. Of course, folks who believe the SC are good guys, wearing white hats and riding white horses can make a different than constitutional law argument. That is all that has occurred.