Stare Decisis is a perfectly fine and efficient principle when considering a hierarchical judiciary. It prevents lower courts from “going rogue,” and answering the questions of a case contrary to the opinion of a superior court. It would be a chaotic system, for example, in which the Supreme Court decided corporate speech is free speech (Citizens United v. FEC), yet inferior courts continued to uphold laws against corporate speech. Stare Decisis helps to keep the same questions and cases from being answered over and over again when superior courts have already answered.

As the national conversation turns to a potentially realigned Supreme Court, I’m reminded of the story of an executive cabinet member who became so furious with a certain demographic for not acculturating he actually convinced the President to issue an executive order to make that culture illegal. When it was revealed that the First Lady was a born-and-bred member of that culture, the President was upset with his own order but nevertheless cited the legal principle of stare decisis, which meant he could not overrule his own previous decision no matter how wrong it was.

Of course, no such American president exists. This is the story of Haman, King Xerxes, and Queen Esther, and the order wasn’t just to make the Jewish culture illegal, but to kill all the Jews. Nevertheless, Xerxes – the most powerful emperor in the world who ruled over 127 provinces – was powerless against the simple abstract force of legal precedent, left to wringing his sovereign hands in despair for the immorality his court had produced.

When I first heard this story as a child, I thought Xerxes a rather weak and foolish sovereign for refusing to overturn precedent. And yet today, adults are demanding the highest court in the country play Xerxes opposite the unborn Esthers.

Senator Susan Collins (R-ME) has established a litmus test with stare decisis, that she will obstruct the confirmation of any nominee that does not duly respect the legal precedent of Roe v. Wade and (presumably) Planned Parenthood vs. Casey. Put another way, Sen. Collins is demanding that any justice bind itself to precedent. The doctrine implies that even if a precedent is immoral, to overturn that precedent would be a greater sin than the immorality itself. It implies that the highest court in the land is ever-regressively inferior to its predecessor.

It’s easy to make comparisons to Plessy v. Ferguson and Brown v. Board, but somehow when it comes to the gospel of Roe there are pro-choice supporters that seem to insist that Supreme Court decisions are the inerrant, infallible, and inspired final word. Oliver Brown, his twelve co-plaintiffs, and millions of black schoolchildren are grateful it is not.

Stare Decisis is a perfectly fine and efficient principle when considering a hierarchical judiciary. It prevents lower courts from “going rogue,” and answering the questions of a case contrary to the opinion of a superior court. It would be a chaotic system, for example, in which the Supreme Court decided corporate speech is free speech (Citizens United v. FEC), yet inferior courts continued to uphold laws against corporate speech. Stare Decisis helps to keep the same questions and cases from being answered over and over again when superior courts have already answered.

Read More