Stare decisis

If you watched any portion of the confirmation hearings for Judge John G. Roberts Jr. to succeed William H. Rehnquist as chief justice of the U.S. Supreme Court, there is little doubt you heard the term "stare decisis." The words were veritably batted about like a shuttlecock at a Chinese badminton tournament by both Senators and Judge Roberts alike.

The term stare decisis has become code words of sorts. But before we break the code, let's understand what the words themselves mean and the principles the words embody.

Literally, "stare decisis" is Latin for "to abide by" or "adhere to" decided cases. It is the policy of the courts to stand by precedent and not to disturb settled points of law. In a sense, it is the ultimate conservatism of the courts, that is, to let what has been settled before lie. Of course, some would argue that the policy of stare decisis is the ultimate in compounding the courts' mistakes, that a wrong decision begets other wrong decisions based upon the first, and then the growing chain of wrong decisions. More on that in just a sec.

In order to understand the principle of stare decisis, it is first essential to understand, in broad terms, how the law works. In shorthand, there are two kinds of law: statutory law and case law or common law. Statutory law can be construed as laws enacted by the various legislatures: federal, state and local. It is written law, enacted by a legislative body which is encoded in rule books which we call statutes, ordinances or codes. Statutes set up from the outset what the rules are and, generally, what the penalties are for violating those rules.

Common law is a different bird. It is the law as it develops accretionally, over time, on a case-by-case basis. One case builds upon the last and when the principles in a case are similar to those in another heard before it, the courts will rely upon the prior ruling or rulings for guidance. This is what is known as precedent. "Precedent," of course, derives of the word "precede" which means to come before. Accordingly, decisions by the various courts on issues or principles which have been heard by other courts before (of, where applicable, by the same court before) guide the court in coming to its resolution, at least one goal of which is maintaining the consistency of verdicts. In other words, one case with facts identical, or substantially similar, to a prior case should not yield a different result. This lends certainty, evenness and fairness to the law.

Precedent means, simply, an adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case arising afterwards upon a similar question of law. Whenever possible, courts attempt to decide cases on the basis of principles established in prior cases. Taken together as a collective, these prior decisions comprise the common law which is law created of the totality of the judgments, decrees and decisions of the courts over time. "Common," of course, means belonging or shared equally by more than one. Accordingly, common law, means "shared" law, the law shared between all of the courts. Common law belongs to the people as opposed to belonging to the legislature.

Since stare decisis means to "abide by," the logical question is to precisely what does the court abide? The answer is straightforward, the court abides by precedent. Expanding the concept, it means that the court will not disturb settled points of law. Stare decisis is the doctrine that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same, regardless of whether the parties and property are the same. Sort of "what's good for the goose is good for the gander," of course in more highfalutin' terms.

Now back to the perception that one bad ruling begets another. While in the short run, this certainly can be the case (look no further, if you will, than the Jim Crow laws which plagued the racially divided south of the 1870s through the 1950s - incidentally, Jim Crow was not an actual person but rather a 19th-century minstrel song that stereotyped blacks), law does, despite the doctrine of stare decisis, evolve and even change outright. Sometimes the change occurs at a glacial pace and, other times, the change is seemingly overnight. The way law changes is, generally, to "distinguish" one case from another. In other words, to provide reasoning to the court why the particular facts of a case then at issue are different than those of other cases upon which a precedent has been constructed and, accordingly, why the established precedent should not apply. Another less common way to shift the law is to show, simply, that the precedent is wrong and that the law has been wrongly applied. These changes, while much more infrequent, are tectonic in nature when they do occur.

The "code" for which stare decisis has recently come to stand in congressional confirmation hearings is Roe v. Wade, the seminal 1973 United States Supreme Court decision affirming a woman's right to an abortion. Since Court nominees cannot be vetted based upon particular cases or decisions, questioning a candidate about his or her subscription to the doctrine of stare decisis has come to stand in for the question "will you abide by prior, settled law?" What remains unsaid, but is clearly understood, is "will you respect Roe v. Wade and leave it undisturbed?"

At its core, the doctrine of stare decisis assures consistency and stability within the body of the law but it is not entirely inflexible. Any student of the law can vouch with sincere conviction that law does indeed evolve, change and adjust and, as the law is "common" law - the law of the people - it ultimately reflects our common mores, beliefs and principles.



Rohn K. Robbins is an attorney licensed before the Bars of Colorado andCalifornia who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of "Community Focus." Robbins can be reached at 926-4461 or at robbins@colorado.net.



Vail, Colorado