Wednesday, September 5, 2018

Stare Decisis....

Top of the evening everyone...

For reasons that are lost on me, I have been watching some of the political theatre of the nomination hearings for Judge Brett Kavanaugh to the Supreme Court of the United States.  One of the things this distinguished judge has emphasized and re-emphasized has been the binding nature of legal precedent.  The Latin for that is stare decisis, and thus the title of this blog entry.

On the one hand, precedent is important.  It is the utmost in arrogance to ignore over two centuries of jurisprudence to render a decision.  The Supreme Court of the United States has been graced by legal brilliance that is difficult to match.  As well, to adjudicate without consideration of precedent places law in a vacuum.  It will lose a sense of coherence in such a vacuum.

However, there are other considerations that make stare decisis a concern.  For starters, sometimes precedent is wrong.  Two famous cases come to mind.  Both are connected to issues of racism.  Dred Scott vs. Sanford has been called the "Court's greatest self-inflicted wound" by none other than a Chief Justice of that Court.  The other is Plessy vs. Ferguson, which decided that separate but equal was Constitutional.  The latter case suffered a unanimous verdict overturning it with Brown vs. Board of Education.  These two precedents are just horrendously bad decisions.  They needed to go.

Other concerns....while precedent is important, it should not be an anchor.  A court must be able to consider a precedent and overturn it.

Related to that, again, while precedent is important, a judge should never lose his/her ability and obligation to reason.  The Court considers about 100 cases a year.  For the millions of cases that the legal system sees every year, that is a tiny percentage.  That a case makes it to this level means that something in existing law needs to be addressed.  Precedent cannot be binding.

Listening to some of the questions to the judge, one other matter comes to mind.  We were taught in our senior halakhah classes that there are two types of halakhic questions.  The first type has an a priori answer.  Is pork kosher?  No.  The other type of question is far more common.  It involves reconciling two or more competing halakhic issues.  Most legal issues are of the latter type.  As such, the ability to reason and to discount or even overturn precedent is a crucial requirement of a judge.

On a side note, I would like to congratulate Senator Feinstein of California.  Her politics are not mine.  However, she deserves a great deal of credit for asking intelligent and probing questions and for giving Judge Kavanaugh a chance to answer.  Wow....civilized discourse between two people who do not see eye to eye on many issues...who would have thought it was possible??

Have a wonderful evening everyone.


P. S.  One of my readers is a lawyer.  BR...if you wish to respond to this entry, I will add your comments to this blog entry.  Obviously, it can wait until after the bat mitzvah.