Brian Fallon, the executive director of Demand Justice, recently said that the discussion about precedent or stare decisis is “mindless” because “If Trump’s nominee can’t come up here and tap dance rhetorically about how they respect precedent that person would have to be an imbecile.”
That may be true. But conservatives are intent on placing new judges on the bench who do not care about stare decisis, a concept drilled into would be lawyers at the start of law school. Stare decisis is the method by which cases with the same legal issues are decided the same, not decided on a result orientated basis. State v. Jewitt, 500 A.2d 233 (1985) (“Our decisions must be principled, not result-oriented.”). As Judge Fine said in his dissent in Lake Bluff Housing Partners v. City of South Milwaukee, 188 Wis.2d 230, 259, 525 N.W.2d 59 (Ct. App. 1994):
The law must be sufficiently predictable so that men and women can conduct their business with the assurance that the rules are not going to change in mid-stream. This requires that judges follow precedent. We must not, like the apocryphal “Eastern despot” mentioned by Sir Frederick Pollock and Frederic William Maitland in the introduction to their seminal treatise on the common law, “deal with every case according to the impression of the moment.” 1 F. POLLOCK & F.W. MAITLAND, THE HISTORY OF ENGLISH LAW xxvii (2d ed. 1899). It is the majority’s “impression” that Lake Bluff should win this case; and so it does.
Refusing to follow precedent smacks of “judicial activism.” An activist judge (plural activist judges) (US, pejorative, chiefly in right-wing discourse) is a judge or justice who makes rulings based on personal political views or considerations rather than on the law, or who issues rulings intended to have political effects.
One of the conservative activist judges being considered by Trump for the Supreme Court is Amy Coney Barrett. As explained by Amy Howe of SCOTUSblog, when Barrett co-wrote her first law review article, Catholic Judges in Capital Cases, she said that that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett observed that she did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”
Barrett is a member of a group called “People of Praise.” Group members, according to the New York Times “swear a lifelong oath of loyalty to one another, and are assigned and accountable to a personal adviser.” Moreover, the Times added, the group “teaches that husbands are the heads of their wives and should take authority for their family.” And legal experts questioned whether such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”
Ms. Howe further explains that “[i]n another article, Stare Decisis and Due Process, published in the University of Colorado Law Review, Barrett discussed the concept of stare decisis – a legal doctrine that generally requires courts to follow existing precedent, even if they might believe that it is wrong. Barrett wrote that courts and commentators “have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books”; in a footnote, she cited (among other things) Planned Parenthood v. Casey, the 1992 decision reaffirming Roe v. Wade. Barrett’s detractors characterized the statement as criticism of Roe v. Wade itself, while supporters such as conservative legal activist Ed Whelan countered that the statement did not reflect Barrett’s views on Roe itself, but instead was just an example of competing opinions on the reliance interests in Roe.”
In front of the Senate Judiciary Committee, Amy Coney Barrett said “I have not said that judges should not be bound by stare decisis.” That is not true. Barrett has said that only the Supreme Court is bound by stare decisis and “that the inferior courts have no sound basis for following the Supreme Court’s practice.” Statutory stare decisis in the court of appeals, Notre Dame Law School Legal Studies Research Paper No. 05-05.
I guess that whole Stare decisis thing is not needed if you are a conservative seeking to overrule decisions you do not like.