Vail Law: Cracking the code of ‘stare decisis’ and legal constants (column)
August 14, 2018
In the upcoming confirmation battle over United States Court of Appeals Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court bench, your ears will no doubt ring with the term "stare decisis." The term will, inevitably, be batted about like a shuttlecock at a Chinese badminton tournament by both senators and Kavanaugh alike.
The term has become a code of sorts. But before we crack 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." In particular, what is being abided by or adhered to is 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 second.
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 over time, on a case-by-case basis, one case compounding upon and reinforcing the next. When the principles in a case are similar to those in another heard before, 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 guide the court in coming to its resolution, at least one goal of which is maintaining the consistency of verdicts. This is a big deal. Knowing what has come before informs how the court will likely rule. Without precedent to guide us, the rules of the game would be uncertain.
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The court abides
Owing to precedent, one may generally rely upon the assurance that a case with facts identical or substantially similar to a prior case will not yield a different result. This lends certainty, evenness and fairness to the law. Obviously, this is not absolute as there may be subtle differences between one case and another which may steer the court upon a different course.
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. 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. Sort of, in less legalese, "What's good for the goose is good for the gander."
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), the law does, despite the doctrine of stare decisis, evolve and even change outright. While this might seem a horror to orginalists, even such hardliners as the late Justice Antonin Scalia must confess in their private hours that the law must be organic and take into account modern sensibilities and modern contexts.
The pace of change
Most times change occurs at a glacial pace; at others, the change seems 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 particular case are different than those of other cases upon which a precedent has been constructed and, accordingly, why the 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?" This, of course, puts orginalists such as Kavanaugh in a bind; if he avows to respect precedent, then he must accept that Roe has been, and is, the settled law. On the other hand, the conservative base to which the proposed appointee must appeal would like to see Roe stood on its head.
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 however those may mutate over time.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.