This blog educates and communicate with fellow trial lawyers so practical cases could be shared that would assist us in helping our clients navigate the legal system better. This month’s blog is rhetorical. The question to the many thousands of readers is simple. Does stare decisis still exist in reality or as a practical matter? I would appreciate your comments and thoughts.
After a brutal term of the United States Supreme Court, does stare decisis still exist? Stare decisis is the legal principle of determining litigation based on precedent and what has happened before in other cases. Predictability and stability in the law is so important to advising clients on what they can or should do and what the potential range of outcomes could be. Businesses and individuals rely on a fair and (theoretically) impartial judiciary coupled to precedent to make decisions that affects their operations and decisions to navigate a morass of laws and regulations that seem to multiply every year.
The Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization has taken 50 years of precedence and tossed it aside because six justices could flex their muscle and do so. The reasoning is unimpressive and hundreds of other commentators have provided their analysis. The Supreme Court also has now effectively eliminated the Establishment clause in Kennedy v. Bremerton School District and Carson v. Makin and stated that the Establishment Clause, like other constitutional rights, must be interpreted by “reference to historical practices and understandings.” I am not a school law lawyer, but I am not sure how you advise a school district client now about prayer or religion in school and the reaction when a religious belief not supported by a majority of people in a community.
Tragically, the Supreme Court has done a terrible disservice to our country. And I am not referring to the outcome because each of us has different religious and political beliefs. Flexing your muscle because you can is a bad precedent. Throwing away precedent with no basis shocks the legal and business world. A court’s membership will change over time and the people’s belief in the fairness, impartiality, and predictability of court decisions has been a binding agent that has held the legal system together for a long time. I am concerned that people simply believe that the courts are unreliable and in the pocket of their supporters who put them on the bench.
The opinions of this blog are solely the author’s, and any comments, suggestions, or replies may be sent to john@jroneslaw.com.
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