Thursday, October 13, 2005


Precedent and Nonsense

One of the issues that comes up when evaluating prospective judges for the Supreme Court is how they will regard precedent. Although this is often code for "will you overturn Roe v. Wade", I think some serious reconsideration needs to be given to how precedent is handled in the courts and it would be refreshing to hear a nominee say so.

Under today's practice, precedent is often given just as much weight as statutory law or even the Constitution itself. If the court says a statute means something, even if the plain language of the statute clearly means something else, and sometimes even if the legislature passes legislation explicitly stating that it meant what it said the first time, the first court's interpretation will be regarded as gospel. As future courts refuse to declare that the first one was wrong, the decisions will become entrenched to the point that none dare challenge them.

Frankly, I find this notion abhorrent. The Supreme Court's job in a case should be to consider the following factors, in order of priority

  1. The Constitution of the United States
  2. Treaties that were legitimately ratified thereunder
  3. Federal statutes that were legitimately passed thereunder
  4. Any state constitution which is applicable to the present case
  5. Any state statutes that are applicable to the present case
  6. Justice
  7. Precedent

At times, justice may be given a slightly higher priority than statutes, if such treatment is necessary to present a profound injustice not intended by the authors of those statutes. Precedent should be considered when it's necessary to select among several possible reasonable decisions, but seldom otherwise; the main reason for consulting precedent even then is to avoid the injustices that would result from courts deciding cases willy-nilly.

Lower courts pose a different challenge: they must rely upon precedent from higher courts. They should not blindly accept precedents which are clearly abhorrent to the Constitution and statutes (after all, their fealty is the Constitution and not the courts above them), but they should generally assume that higher courts are correct unless they have very solid knowledge that they're wrong.

Of course, for lower courts to follow the rules established in the higher courts' rulings, they have to understand them. This, unfortunately, is easier said than done. In an effort to avoid charges of "legislating from the bench", higher-court justices often dont's spell out real rules for deciding cases, but instead say how certain cases are decided and leave it to lower-court judges to infer the rules from that. The result of this can be worse than "legislating from the bench" because while the court makes rules, nobody really knows what they are; people have to live in fear of rules they can't possibly understand.

One remedy to many of the problems with precedent would be to codify a new rule: people should not be punished for acting according to a reasonable understanding of the de jure and de facto rules they were supposed to live by. If the court finds that a person's understanding of the law (de jure or de facto) was incorrect, but that a reasonable person could have shared that person's understanding, the court should be able to a decision which excuses that person for interpreting the law that way, and also excuses anyone else who has previously done likewise, but simultaneously estalishes that such an interpretation of the law is incorrect, and that it will not be excusable in future.

Although care must be taken to avoid letting the courts use such powers to offer corrupt advantage to favored people, allowing and encouraging the courts to issue such decisions could do a lot to minimize some of the problems with precedent.

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