Posted on 01/12/2006 8:54:33 AM PST by Piranha
This morning, Judge Alito mentioned Stare Decisis, the issue of a precedential legal opinion that may have been decided incorrectly. He said that he had previously discussed the factors that come into play when a stare decisis situation arises.
Is anyone here aware of what those factors are and how he said he would use them? I have not been listening to/watching the hearings regularly and I missed that analysis.
Thank you.
I think he must have given a more systematic outline with various tests, as is customary when a court reviews an issue that requires independent judgment. Courts construct tests all of the time, and from his comments this morning it seems as though he has a specific test (comprised of multiple points) that he will use to analyze these situations.
Sometimes you feel like a nut. Sometimes you don't. :-)
While he might come up with various factors that one would use, I think he'd likely say that there isn't any formula that you can just plug a case into and give the answer.
Again, from his comments this morning it seems as though he has set forth specific factors to consider, if not in priority form then at least in a list.
Since this may be one of the most significant components of his role on the court (he will run through this list every time there is the possibility that his opinion would require him to overrule precedent) I think that this issue is very important, and could be very enlightening to all of us.
I think my point was to poke fun at stare decisis. I am a lawyer and I am opposed to this doctrine altogether. A decision need only rest on this doctrine when the justice cannot base the decision on the Constitution. Case law should only be relied upon when the precedential case was grounded in the Constitution to begin with.
Roe is a good example of precedent not worthy of being respected, let alone followed. Other cases, dealing with the 4th Amendment for instance, have legal value which should be used as a guide. They did not originate in a broad sweeping social policy revolution.
This thread will self destruct if and when I am ever nominated to the federal bench (as if my opinions here would be my biggest problem).
May I ask why you think it incomprehensible?
Or did I misunderstand?
But Stare Decisis is not the end all...Otherwise we would not have never overcome slavery and the like that has also been once heavily precedented and imbeded into our culture.
To me, Stare Decisis is judicial laches. To the extent that the affected public (my phrase) has come to rely on a proposition as settled law, it would be disruptive to reverse it because it has come to be viewed as erroneous from the outset. Otherwise, there would be no predictibility of a legal outcome and people who want to act within the confines of the law would have a harder time doing so.
In my own opinion, if Roe v. Wade were settled law to the extent that stare decisis clearly should be applied, then the Democrats on the committee (and Specter) would not be so frantic in trying to extract a commitment not to overturn it.
On the other hand, the securities laws, to name one area where stare decisis is important, are filled with made-up interpretations that have come to provide a settled and predictable model of outcomes, which securities practitioners can use to plan their own behavior.
Stare decisis is a legal principle that says a judge, in deciding the issue before him, should take into account prior cases that have decided the same issue. The principle is intended to promotes stability and continuity in the law. However, it is not absolute, nor is it meant to be followed slavishly. Things can and do change, and one of the great advantages of our common law system is the ability to take change into account.
YES!
Please disregard my previous question
(I really should read ALL the comments before I post :)
Alito said it was important and gained weight ech time it was used in a subsequent ruling or was affirmed.With this said he would not accept that the Supremes could not revisit any issue.
In the case of Roe, the only "settled expectations" are that abortion would remain legal. And it can remain legal even if the court's holding is overturned, just as long as the state legislatures agree to keep it legal. If they don't, then it's a very good sign that the people of that particular state don't want it to remain legal. And at that point, it would be no different from anything else which had been legal up to a particular point, but which the people decided should be illegal.
Hope this helps. See Item #2:
http://villagevoice.com/news/0602,lee,71717,2.html
It's a little different when talking about statutory law, because Congress can change it at any time if the court gets it wrong. Constitutional law is a whole different ballgame, because it's not meant to be constantly amended. It's meant to provide a stable framework, and so if stare decisis becomes too dominating a factor, it effectively means that the courts have the power to change it on their own, and that undermines stability, rather than promotes it.
From yesterday's dialogue with Feinstein:
ALITO: There are a number of factors that figure in the application of stare decisis in particular cases. There are factors that weigh in favor of stare decisis and there are factors that weigh against stare decisis.
Factors that weigh in favor of stare decisis are things like what the initial vote was on the case, the length of time that the case has been on the books, whether it has been reaffirmed, whether it has been reaffirmed on stare decisis grounds, whether there has been reliance, the nature and the extent of the reliance, whether the precedent has proven to be workable.
ALITO: Those are all factors that have to be considered on an individual basis.
FEINSTEIN: But I'm asking you: What would be the special justification that you mentioned this morning that would be needed to overcome precedence and reliance?
ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant.
This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not.
The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed.
But it is not the -- the rule of stare decisis is not an inexorable command. And I don't think anybody would want a rule in the area of constitutional law that pointed and said that a constitutional decision once handed down can never be overruled.
So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all of the...
FEINSTEIN: My question was a different one, respectfully.
You don't really believe that. You'd want every case to be a case of first impression? The law would be completely unpredictable. Heck, even the admissibility of evidence would be unknown.
"To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports."
The real issue is Roe v Wade, is it not? They threw this out at Roberts, too, and he answered by-th-book. That particular decision -- and many others in the SCOTUS -- was arrived at using 'faulty law' or, rather, law applied using faulty method, if I may paraphrase Mr. Roberts.
I think during John Roberts's hearings he said that stare decisis is more applicable in the context of statutory interpretation and less applicable in the context of constitutional law.
Although initially this analysis seemed backward I now understand its logic and agree with it.
He was saying that if the court imposes an interpretation on a statute that is wrong, then all Congress has to do is correct it through legislation. However, if the court imposes an interpretation on a constitutional provision that is wrong, this can only be corrected by amendment to the constitution!
Therefore, according to that line of reasoning, the court should be more concerned with accurate interpretation of the constitution and less concerned with the predictability inherent in a settled matter.
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