Stare Decisis

The dissent criticizes today’s decision as a departure from modern habeas precedent. Post, at 2; post, at 3, n. 2; post, at 12–13. But the dissent’s history is selective. The dissent champions decisions from the 1950s, ’60s, and ’70s. But it disregards how those decisions departed from a century of this Court’s precedents and the common law before that. Supra, at 5–8. At the same time, the dissent’s account overlooks this Court’s precedents refusing to afford retroactive application in every case since the 1980s. Post, at 10–11; post, at 12, n. 7. The dissent may prefer decisions within a particular 30-year window. But it is too much to say this preference is required to “[r]espect[] stare decisis.” Post, at 1, n. 1.

Justice Gorsuch, concurring opinion, Edwards v. Vannoy

Stare decisis-“To stand by that which is decided”-when we feel like it.

Stare decisis tends to be invoked by judges who like a prior decision and ignored by judges who believe the prior decision was a piece of judicial idiocy. Of course when a court is dealing with constitutional issues stare decisis plays less of a role because the Constitution, and the correct interpretation of it, is infinitely more important than prior decisions of any court. As Roe, and its misbegotten progeny, amply demonstrated however, prior to it being cast into the dustbin of cases where the Supreme Court has overruled prior decisions, too often the tool of constitutional interpretation used by the Supreme Court and many other courts might rightly be called “making it up as they go along”.

Since law school I have been extremely cynical about stare decisis.  Although I recognized the utilitarian worth of the doctrine, courts should not constantly be revisiting matters already decided, and that lower courts had to follow the rulings of higher courts, it was clear from the case law I read that stare decisis presented no obstacle when courts wanted to embark on a new course in a previously decided area of the law.  Law Professor Josh Blackman notes this aspect of courts in regard to the Supreme Court:

Justice Kagan and her colleagues are keen to extol the precedents established by the Warren Court. But left unsaid is how those decisions had zero respect for precedent.

Randy and I have added a chapter on Criminal Procedure for the 4th Edition of our casebook. In the process, I re-read many of the leading Warren Court CrimPro decisions. And I approached these cases from the perspective of constitutional law, rather than the nuances of law enforcement. I was struck, over and over again, at how willy-nilly the Warren Court nullified precedents. There were no discussions of reliance interests. In some cases, cases were overruled in footnotes, almost as an afterthought.

Go here to read the rest.  In practice stare decisis, on the appellate level, means stare decisis for thee but not me.  I will overrule precedents when it suits me, and when you attempt to do the same I will scream stare decisis.  Any judge taken in by such double dealing is too stupid to be a judge.