Thursday, January 16, 2020
My Akron colleague Mike Gentithes gives us yet another reason to hate the Janus decision -- the way it undermines stare decisis generally, with potentially dire consequences for abortion rights, civil liberties, labor/employment rights generally, etc. etc. The article is Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis; it is a depressing but persuasive read. Here's the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.
This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.