May 18, 2022

The Stupidity of Slavish Devotion to Precedent

Selwyn Duke forwards this:

https://jonathanturley.org/2022/05/14/clarence-thomas-when-someone-uses-stare-decisis-that-means-theyre-out-of-arguments/

Correct, but I go yet further. Stare decisis (deference to precedent) is nothing but a disgusting judicial rationalization that serves to elevate judges' opinions above the law. It is un-American and unlawful, and no judge espousing it should be considered qualified to sit on any bench.

Tim replies:

It is the logical fallacy of argumentum ab auctoritate. It presupposes that someone in the past necessarily got it 100% correct and so you cannot challenge it. Imagine if we useed this in science; we would not have Relativity, Quantum physics, or even Newtonian physics. We would still be discussing Aristotle as the basis of our science. But in law it's absolute!

John M. Hill rebuts:

Precedents protect laws from future judges overturning laws based on their biases without argument.

Mr. Birdnow replies:

It does John M. Hill, and it comes out of English Common Law rather than codified laws. But at what point do you say it is not helpful?

Clearly Dred Scott was not helpful. Plessy v. Ferguson was not helpful.

Some laws are overtaken by science and technological change. Others were just poorly decided. We want precedent there, but we also want a certain degree of flexibility because sometimes it's just idiotic to slavishly obey an order from the past.

As I said, it is a case of argument from authority in many cases. In this instance modern science has made the case against abortion even stronger than when Roe was (wrongly) decided. If Stare Decisis is all that matters then we would still have a host of bad things still on the lawbooks.

There were all sorts of old, venerable laws that are no longer acceptable. Laws against dancing, or working on the Sabbath, or the possession of alcohol were all on the books at one time. Some were ended by the political process but a large number of them were ended via court cases - court cases that overturned legal precedent on many occasions.

Remember the context I'm stating this; it is in reply to Selwyn's argument here. I agree.

And given the way the Left has repeatedly overturned legal precedents in the past to promote their beliefs it is a necessary thing to overturn precedent.

Did you know that most legal precedents were overturned in the last hundred years? It started with the 1930's and Chief Justice Charles Evans Hughes. The Progressives have used it repeatedly. SCOTUS overturned established precedent 145 times over the years.

That includes such rock-solid precedent as gay marriage, where they just created a right out of thin air (there never was any nation on Earth that had gay marriage until the 1980's - that was the Netherlands.) Overturning precedent in that case would be to restore precedent - not radicalize it.

There are many others. Certainly Roe v. Wade is one such.

If precedent were all that mattered we could dispense with the Supreme Court entirely. Everything would be covered by existing laws/precedents.

Posted by: Timothy Birdnow at 10:00 AM | No Comments | Add Comment
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