How judicial nominees and appointees grasp the relationship between their judicial duty and the doctrine of stare decisis causes much consternation. This issue is a device of convenience having little meaning in the currently legislatively active judiciary.
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We don’t have to look far to see the wink and nod approach to principle.
But the resurgence of the stare decisis debate has not been limited to the world of partisan mudslinging. Ideologically diverse members of the Supreme Court itself have taken pains to expound on how they believe stare decisis norms interact with judicial duty.
Currently, opinions on the propriety norms of the principle run the gamut. Justice Stephen Breyer, and the liberal bloc, took a strong view of stare decisis in the 2019 case Franchise Tax Board of California v. Hyatt.
Breyer wrote, “The law can retain the necessary stability only if this Court…overrul[es] prior precedent only when the circumstances demand it… It is…dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question.”
That Breyer would advocate such a hardline defense of the principle shouldn’t be surprising. Modern legal and political progressives invariably bandy about stare decisis. Generally, they do so with a nod and a wink to the Court’s major abortion precedents: Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. All we have to do is look to the Gorsuch and Kavanaugh nomination battles.
Neither left nor right feels bound, it is only a legal principle
This phenomenon is not exclusive to the left. In the 2020 case June Medical Services v. Russo, a four-justice plurality nullified an anodyne Louisiana regulation. It would require abortionists to maintain admitting privileges at a hospital within 30 miles of their clinics. Chief Justice John Roberts concurred with the plurality. This is in spite of his dissent four years earlier in the nearly identical case of Whole Woman’s Health v. Hellerstedt. This was due to his peculiar belief that stare decisis norms required it.
He wrote: “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.” Similarly, in the 2020 Sixth Amendment case Ramos v. Louisiana, Kavanaugh dedicated 18 pages to rationalizing his own view of the binding scope of stare decisis: “[A]pplying the doctrine of stare decisis, this Court ordinarily adheres to precedent, but sometimes overrules precedent.”
The layman watching the high minded robed rulers are left agog at the lack of principle with which this principle is abused. It appears stare decisis means whatever one might wish, whenever one wishes to waffle on a decision. Mere mortals must be bound by the consistency of application of a principle. Not so, our robed crusaders.