Words worth defending: stare decisis

Words worth defending: stare decisis
Source: pdclipart.org

After Dobbs vs. Jackson Women’s Health Organization, the Supreme Court ruling overturning Roe vs. Wade, I kept hearing mentions of an unfamiliar term, stare decisis.

I had to look it up, but as usual, that’s a signal to me that a word or term needs defending — it needs to get out in the sun and get some use. Stare decisis is just such a term. Thus, I looked it up so you won’t have to.

Google’s definition, provided by Oxford Languages, is “the legal principle of determining points in litigation according to precedent.”

Precedent. Most of the country remembers that, if six people in Washington, D.C., don’t.

No wonder editorial commenters are saying that stare decisis is threatened by the Dobbs decision — and the EPA decision, and the promise of others to come.

I’ve read or heard in several places that Chief Justice John Roberts is an incrementalist, which Merriam-Webster defines as “a policy or advocacy of a policy of political or social change by degrees.” I could be wrong, but it doesn’t look like he had much influence over Dobbs.

Granted, if something is obviously unconstitutional to a majority of people, it deserves overturning. But stare decisis means “to stand by things decided” in Latin. The exception is when “they contravene the ordinary principles of justice,” according to Merriam-Webster.

There is arguing ahead, some of it on First Amendment grounds since the protected “free exercise of religion” means that some religious groups disagree with the limits the states are now allowed to impose according to Dobbs.

Let’s hope that stare decisis still holds in First Amendment cases, or we’re sunk.

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  • As anyone who went to law school will tell you, don't rely on any dictionary, including Black's Law Dictionary. Whatever one thinks of the result (and I don't agree with the resulting policy), the opinions are the primary authority, and 2 of the prevailing opinions were written by Yalies (Alito and Thomas), and the other by a Harvard grad, and I can't argue with them on the jurisprudential points (Alito on the limits of stare decisis, Thomas, in that I was taught that substantive due process was eliminated in the 1930s, even though Lightfoot was correct that his analysis would result in overturning the gay marriage decisions, and Roberts in saying that the court decided unnecessary matters).

    On the First Amendment point, I don't know of any religion that advocates for abortion, but protesters are sure using the Free Speech and Assembly clauses without interference.

  • In reply to jack:

    Thank you, Jack. I thought you would find this, and I'm glad you did.

    As I understand it, the opinions become part of the precedents.

    As for the First Amendment, I mentioned it because I keep hearing that the Dobbs ruling is based on (extremely) conservative Christian views, with which other religions (other parts of Christianity as well as Islam and Judaism) do not agree. By in effect turning conservative Christian views into law, the court is interfering with free exercise of other religions. I do not say that any of them favor or advocate for abortion -- I don't know anyone who thinks of it as other than a horribly difficult, horribly personal decision. But in some of those difficult circumstances, some groups think it should be allowed. That was not overruled until the Dobbs verdict.

  • In reply to Margaret H. Laing:

    The only thing I can say about religion is that Congress knew what it was getting in Barrett, but the Dems questioned her on Obamacare instead of on abortion. I suppose one could take the view you did, or the Alito statement in the opinion that abortion was not a right at common law and was negated by legislation and thus not a fundamental right until 1970.

    The opinion is the precedent, but again note the discussion about the 3-2-4 opinions in Casey, and the principle of "obiter dictum," which means that things not essential to the decision don't count, which is close to Roberts saying that it wasn't necessary to overrule Roe and Casey to uphold the Mississippi statute, but it is clear here that the Court did so. With regard to precedent, anyone who has used a citator (and that's now easier since they have been computerized) knows about overruled, although Bush v. Gore was the first case of which I know where conservatives used liberal precedents, and this is another one (see page 40).

  • In reply to jack:

    Thanks again, Jack. But see page 40 where?

  • In reply to Margaret H. Laing:

    Citing Brown v. Board of Education to overrule precedent (Plessy v. Ferguson). Also, I meant printed page number 40 (the folio), which appears to be page 48 in the pdf reader toolbar (the syllabus being numbered separately, although it won't be in the bound reports).

    My reference was to:

    Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. ... In so doing, the Court overruled the infamous decision n Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule. ...

    Of course, I was focused on your headline of stare decisis and comment about precedent.

  • In reply to jack:

    OK, and thank you for your focus. Infamous decisions are one thing, of course, and famous ones favored by large parts of the public are another.

    I think that incremental changes, if they are seen as needed, are safer than this wholesale return to "state's rights" (which is not the least notorious of expression, by the way).

  • In reply to Margaret H. Laing:

    One thing I noticed in many of this Court's decisions is that it first uses doctrines such as standing to avoid a decision on the merits, and often states (in the Obamacare and in this decision) that this is it. While some of the opinions indicate that Congress could act, it is so polarized that it can't do much of anything.Whatever one wants to make of the division of powers (as also reflected in the EPA decision) and the 9th and 10th Amendments is a matter of opinion.

  • Thanks again, Jack. I think of them avoiding decisions on the merits and saying "What merits?" Sigh. I am hearing people on the radio talk about "the Fourth of July holiday" over and over, and with the state of things, I think we particularly need to say "Independence Day."

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