Law in Contemporary Society
Is anyone else disappointed with this nomination (from a non liberal/conservative point of view)?

I think it is terribly disappointing that we keep getting these Ivy League judges on the Supreme Court. Sure, Kagan has no "bench" experience, so in that aspect she is diverse. She is also female, which may be needed. But, she is still what at least 7 out of the other 8 are on the court: legal intellectuals. Frankly, I would have liked to have seen (and would like to see in the future) non-intellectuals grace the halls of the court again. There used to be a time when one did not have to go to an Ivy league law school to be on the court. Now, it is a prerequisite. And, I can't think of a nominee that would be a bigger intellectual than Kagan: law prof turned Harvard Law School Dean. But, I don't know the woman, so, maybe I'm wrong.

-- MatthewZorn - 13 May 2010

Matt - Can you explain a little more what you see as the problem with having ivy league or intellectual justices? Do you think that there's something wrong with having too many of any of one "type" or justice, or something wrong with a sort of blind adherence to a prerequisite of an ivy league degree - if that's what's happening - or maybe something else? If it's the former, what do you see as the downside of having this kind of a court?

-- JessicaHallett - 13 May 2010

I thought this article today in the Times was great. I liked this quote about Marshall's judicial philosophy which apparently Kagan didn't really buy (perhaps due to her very different background?):

But the case Justice Marshall cared about the most that year, she wrote, was the school bus dispute in which she had trouble justifying his dissent. The final draft seems to implicitly acknowledge that his vote rested less on legal doctrine than on his notion of social justice.

The case, it says, asked “whether a state may discriminate against the poor in providing access to education,” adding: “I regard this question as one of great urgency. As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.”

-- DevinMcDougall - 13 May 2010

@Devin, Thanks for linking the NYTimes article, it was a great read outlining the differences between Kagan and a legal giant. I think that one of the issues that many have with justices being drawn from the intelligentsia is that they view the law in a very technocratic way. The quote from Marshall that struck me was his explanation of jurisprudence as “You do what you think is right and let the law catch up.” Although every citizen will not agree with a justice's ideas of what is right, at least they will be able to understand the motivations and arguments that the High Court uses in validating or striking down laws. When assessment of the law is steeped in technocratic bullshit, it not only makes it difficult for American citizens to understand the issues at stake, it also (at least I believe) prevents the Court from understanding the ramifications of their decisions. Justices should certainly be intelligent and have strong academic credentials, but I think there is a legitimate fear that they are becoming 9 bureaucrats rather than 9 wise men (and women).

Also, anyone else wondering how many times Justice Marshall called Eben a "knucklehead?"

-- TaylorMcGowan - 13 May 2010

I suppose my feelings on this matter are largely colored by what I am reading now that has amplified my anti-intellectual streak. Again, I do not know Kagan personally and have not taken the time to read her law review articles. I will, however, go out on a limb and say that if she at any point served as the HLS dean, that my personal assessments of her and her method jurisprudence are probably not that far off.

I remember in high school in a class called "Theory of Knowledge" (a high school epistemology course) our teacher instructed us to rank the "7 ways of acquiring knowledge." I don't remember them all precisely, but, some of them were: empirical observation, faith, authority, intuition, and of course logic. Unsurprisingly, logic topped most lists or finished second to empiricism. Looking back, the whole exercise seems absurd. I wish I could go back in time to rehear my own justification of my list. Because, I cannot think of a logical reason that logic should be "1". In fact, what the exercise demonstrates is that intuition is an extremely high form of knowledge. At the meta level of the exercise, it is intuition which drives how we rank each form of knowledge against each other (alternatively empiricism, but certainly not logic). But I digress--

The point is, logic (and relatedly legal rules and justifications) are not supreme high forms of knowledge. They are useful, but only insofar as a person recognizes what they are and are not. To borrow heavily from Schopenhauer, legal rules are merely knowing in the abstract what everyone knows in the concrete. Legal rules are the product of synthesizing other forms of knowledge acquisition. In every case, it certainly is easier to apply a legal rule, but, that doesn't mean the same outcome cannot be reached some other way. In fact, the legal rule is a codification and approximation of the other way.

But, sometimes the legal rule gets it wrong (as Justice Marshall says). Language (like "strict scrutiny") legal rules, these are but approximations of ways to achieve outcomes. And sometimes, these abstractions get the outcome wrong (or in the case that the NYT brought up, the desired outcome diverges from the legal outcome). It isn't so much a paradox that the application of a rule leads to the wrong outcome but an imperfection with the creation of the abstraction itself. Of course, this warrants an entirely different discussion. I only mean to point out that legal rules are imperfect beings, created abstractions designed to imitate other forms of reasoning.

Which brings me to why I don't think we need another intellectual on the court. Applying rules is fantastic and I'm sure that a Harvard, Yale, or Columbia education is fantastic in teaching one how to apply legal rules, create legal rules, etc. To be sure, I want a justice who knows how to navigate legal rules and make good arguments. But to have 9 people good at applying something so disjoint from the other forms of reasoning makes me a little queasy. I worry when people get too absorbed in abstractions, especially when they are the very people who create abstractions. Perhaps I am a little (or a lot) influenced by Eben on this, but it did not take me too long in Con Law for me to realize that Marshall was one of my more favorite Supreme Court justices. Taking rules too seriously leads to bad outcomes, but only he seemed to realize this. And, as Taylor said, I'm afraid we are just going to end up with 9 bureaucrats who are really good at applying, creating, and bending rules.

-- MatthewZorn - 13 May 2010

>Is anyone else disappointed with this nomination?
I haven't felt disappointed or pleased. I understand what many people are saying about the Court being stacked with ridiculously elite, arguably out-of-touch people. However, the field of choice is limited as long as we all stick to the view that the justices must be lawyers. Anyone with a law degree -- Ivy League or not -- is automatically more elite than 90% of Americans. This is why I'm not disappointed. I didn't expect anyone truly different from the others.

>9 bureaucrats rather than 9 wise men (and women).
She is a replacement hitter for the liberal(ish) Four. The exciting moment will come when one of the right-wing Five retires. The exact beliefs and abstruse doctrines favored by each individual justice aren't nearly as important as how many there are on each side.

I sound cynical here, so I will add that I'm glad she's a woman. The Court frequently hears cases that I think are easier to understand and decide well on if you have lived your life in a female body.

-- AmandaBell - 14 May 2010

I agree with Matthew on his point about legal abstractions. The Supreme Court is able to turn such important issues into issues of abstractions, especially in some of the older opinions that we read in Con Law. However, I also think that the court has modernized a bit since the 1920’s. The opinions and the reasoning behind them have been easier to understand. On the other hand, that doesn’t always make the decisions that come out of the court the correct ones.

But my question to Matt is would Kagan be a better candidate if she had the same accolades but went to a non-Ivy League law school? What would that change? Also, what kind of “non-intellectuals” should be on the court? This goes to Amanda’s point to which I also agree: one would need to be some kind of intellectual to successfully finish law school and get a JD in the first place.

-- StephanieOduro - 15 May 2010

For anyone that is interested, I highly recommend watching the West Wing episode "The Short List." It deals with a lot of the issues that have been raised here - albeit with a more political tilt and the brilliantly-written dialogue of Aaron Sorkin.

-- TaylorMcGowan - 16 May 2010

Today's Washington Post presents an argument for nominating only elites to the Supreme Court. I guess that Supreme Court justices are nominated based on the same criteria used to hire in most professions (and from which we will all benefit from at some point in our careers) - comfort with the candidate on a personal level and risk-minimization on a professional level.

-- SaswatMisra - 16 May 2010

I will write a more extended response in a couple days. Suffice to say, though, that it is hard to argue with the Dean of Berkeley Law (and HLS Alum) when you make devastating assumptions.

First, that getting into an elite institution (i.e. doing well on filling in bubbles) is demonstrative of one's ability to understand and apply the law. Second, that student evaluation while within law school is determinative of ability. Third, and most disturbingly he creates a an elephant sized strawman--nobody is arguing that there should be no elites on the court (i.e. that "elites do not belong"). Rather, the argument is that the court should not be exclusively elites. As it happens, he is arguing against nobody.

I think though, that his article is extremely valuable and supportive...of my position.

-- MatthewZorn - 19 May 2010

I think you can argue that the elitism of the Supreme Court is one of its strengths. In addition to the role it plays in the Federal Government's separation of powers, the Supreme Court helps perpetuate an idea of objective law and justice. I realize that this is a myth, and one that people accept to varying to degrees, but the almost sacred place it holds in the public consciousness actually does add a certain degree of stability to society. Part of why I don't think that myth is dangerous is precisely because the Supreme Court is so political. Citizens do affect the Court through their election of presidents and other politicians. They simply do so more slowly and over a longer time frame.

Also, why doesn't it bother you that we keep having Ivy League presidents? We haven't had a president in over 20 years who didn't go to Yale or Harvard.

-- DanKarmel - 16 Jun 2010

I sort of slept on this...I'll start with my main 2

Critique 1: The author, in my mind, overestimates the meritocracy of the system. Now that everyone has received their grades back in many of their classes, and seen how exam prep and knowledge correlates with grades, maybe we can see the point--there is a good deal of random luck involved. Even if one does suppose that getting top-grades is not luck, why the hell does the ability to ace a 4 page issue spotter make you qualified for a Supreme Court seat. Oh wait, it doesn't.

Of course, there is more to excelling than 1L grades. But within law school, 1L grades are so influential its just hard to ignore them and in my mind inflicts a devastating blow on anyone who claims "law school success" is equivalent to "knows how to be a good judge."

The other argument against "eliteness" on the meritocracy front is that while Harvard/Yale/Stanford on down house the best and the brightest, the next 50 schools all contain equally capable candidates. In my mind, a top 10% student at Harvard will be able to exercise the same level of legal analysis as the top student at say, Montana or Florida. Which leads me to #2...

Critique 2: Being a justice requires competent legal analysis, not brilliance. Most of all, a Supreme Court justice should be just and fair. And, I see no evidence that Harvard students have any greater notion of fairness than a Georgetown student. Of course, this point is moot if you are of the school of "the law leads a person to the correct outcome." Of course, only the most delusional and ignorant believe that constitutional law is based on a set of formal rules and that the rules dictate the outcome. This has it backwards--the outcomes determine the rules. As such, a person who can perform a brilliant analysis is only better insomuch as that person can disguise the outcomes through opaque recitations of doctrine. There is no evidence to indicate that Harvard alums are better a judging, i.e., applying law to fact.

My instincts, though, tell me that Kagan is a person who may lose the forest through the trees. This ( sort of solidifies this opinion. Of course, she may have changed.

-- MatthewZorn - 16 Jun 2010

Well, I certainly would not want to have no Harvard / Yale people on the bench. Concisely, I suppose my major issue is this: diversity. There is diversity of all different kinds: racial, religious, gender, geographic, etc. Educational diversity, to me, is more important than the whole lot.

To analogize with philosophy, our conceptions and structuring of the real world into space-time is largely shaped by survival instincts and the "nurture" around us. The way we breakdown our surroundings is very much a product of the way our surroundings breakdown us. But, just because we choose to arrange our world in a certain way does not mean it is any more right or wrong than any other way. As we learned with Veblen / classical economists, neither way of looking at the problem is right or wrong--they are just different ways of looking at an issue. A similar case can be made for learning law at the elite schools. Sure, the justices have different labels like "originalist" or whatnot, but, the fact is they are all from the same elite crop and to that extent have been conditioned by eliteness.

As for the President comment--good point. I suppose, since the people have a more direct say in who is President, I am a little more comfortable with the Ivy dominance. Of course, I find the use of 20 years sneaky, since, over the course of 20 years 16 of those years were filled by 2 people. Stretch the time frame out a little and you get less Ivy league pre-eminence.

Nevertheless, to answer your comment more directly: I am bothered a little by eliteness in all spheres of human existence, but especially government and the judiciary. It seems like a symptom of baby-boom eliteness (and humanity) to (1) perpetuate eliteness (2) try to become even more elite and (3) screw everyone else.

-- MatthewZorn - 16 Jun 2010

Just thought this discussion could use a little perspective. First of all, there seems to be some notion that there were ‘glory days’ of the Supreme Court when it wasn’t full of intellectuals. Perhaps this is true in some sense, but I think that is partially because until 1846, no justice had attended a formal law school (and there was a sitting justice who did not have a law degree as late as 1957). Only five years later, in 1851, the first justice from Harvard Law was appointed. Of the justices who did complete law school, half went to Harvard or Yale, and over two-thirds went to what are now the so-called ‘T14.’ Most of the rest still went to very highly regarded schools. So to say the court hasn’t always been dominated by intellectuals is a little misleading, although I can concede that now it is only Harvard and Yale, which might make some difference. (Disclosure: facts based on Wikipedia, should admittedly due better research but it seems accurate)

Second, there seems to be the notion that the justices are bred elites who have no concept of the real world. While some of them certainly were born into wealth, I know that cannot be said for Sotomayor or Thomas, and my impression is that Ginsburg and Alito grew up in at best working to middle class situations. I can say from personal experience that just because you attend an elite educational institution does not mean you grew up as an elite or anything close to it. And even if you did, if you are exceptionally intelligent and are pursuing a legal career, why wouldn’t you want to go to the best school where you would be offered the greatest resources?

Also, aren’t we forgetting that these people do stuff after law school, and perhaps their nominations might be based more on that? If going to Yale or Harvard was a one-way ticket to the Supreme Court, I would have studied more for the LSAT.

-- RorySkaggs - 16 Jun 2010

Perhaps. But I guess what I am saying is it is the act of attending an elite school can brainwash you over time. Sotomayor may have come from humbler beginnings, but, after 7 years of an Ivy education she probably is equipped the same magnifying glass that the other 8 justices are using to read the constitution.

Also, I'm not arguing that no Crimsons or Yalies belong on the court--I'm saying it should not be exclusive.

-- MatthewZorn - 17 Jun 2010

Matt, I must admit that I am very sympathetic to the points you have been expressing - especially the one above about how attending elite schools can result in brainwashing. Focusing solely on the brainwashing effect of attending elite schools however may be blinding us to a larger problem (one which I believe Eben was trying to enlighten us to) and that is the brainwashing that occurs in law school.

Law schools treat law as a science with the all-important skill of "thinking like a lawyer" serving as a replacement for the scientific method. As such, lawyers are trained to be faithful to "the law," rendering their assessment of the subject overly technical and devoid of a proper understanding on how the law affects (to use the words of BP's idiot chairman) the "small people." I think some of the discontent being expressed is reflective of a desire for all lawyers, not simply the ivy leaguers, to demonstrate their understanding and acceptance of the simple truth that is inscribed above the Georgetown Law library - "Law is but the means - Justice is the end."

-- TaylorMcGowan - 18 Jun 2010

Let's get some non-lawyers up in there too. It would make ConLaw? way more fun. Imagine reading decisions by someone who never went to law school.

-- NonaFarahnik - 19 Jun 2010

I originally thought that Presidents selected for Harvard and Yale graduates because they predominated in the federal judiciary. When I looked at the bios of 108 Court of Appeals judges and the last 10 Solicitor Generals, it surprised me to learn that 86 of them did not attend Yale, Harvard or Stanford. Of the 86, about half attended other "T-14" schools, the other half went to their state or local law school. Whereas before I thought the Presidents were picking judges who happened to be from Yale, Harvard or Stanford because the population of people they are picking from is overwhelmingly Yale, Harvard, or Stanford- I'm now wondering if the opposite is true. Of course, the judges and lawyers I selected are currently practicing, I'd have to go back to when the longer serving Supreme Court justices had not yet been nominated to see if this held true then. But for picks made in the last two terms (3 COA judges, 1 SG, all from Harvard or Yale) the president seems to be selecting a non-representative sample in terms of alma mater.

So I'm left with many more questions as I try to explain this disparity. Are the resumes of those particular judges selected augmented by a lot of earlier federal government or academic positions they received as a result of where they went to school? Did those schools give them certain social or political connections that allowed the administration to more easily gauge their political leanings? Do those schools really produce a more intellectual or ideological lawyer better suited for the work of the Court? Does the administration actually expect that a Second Circuit judge from Syracuse Law would get asked by Congress why she didn't get into Yale? Or are the presidents just huge boosters?

I do know this much, the average person on the street is not concerned about whether high powered judges come from non-Ivy schools. I think they are more concerned with nominating people who are qualified for the job or will decide their way on key issues. The "relatability quotient" for a Circuit Court judge is very low regardless of where he went to school. So I don't think picking judges from non-Ivies is going to help a president politically in the short-term, and I can't see any other reason why they'd do it.

-- JonathanWaisnor - 19 Jun 2010

I just found this link I've been meaning to add to the discussion.

The author does claim "[t]here’s about to be a backlash against the Ivy League lock on the court," but that's not the major point of the essay. Rather than focus on elitism, he describes what he calls "Organization Kids" on elite college campuses. "[T]hey had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged."

It's interesting because it brings us back to one of the recurring messages from the class; students' inability or an unwillingness to develop original ideas; our habit of thinking that telling our professors what they want to hear is the key to success.

Is this really a new phenomenon? How particular is it to elite schools?

I think part of the problem is also a general fear of taking unpopular positions, not only because it may affect your grade, but because it may be socially or politically damaging. This may not be directly on point, but I think some of the comments in this discussion from a while back touch upon the fear that many students have of taking unpopular positions.

-- DanKarmel - 23 Jun 2010

I’d like to echo Nona’s point- get some non-lawyers in the Court. They don’t necessarily have to be non-lawyers, but just like what the discussion has shown, it is very important to have people with different background and experience on the bench at the same time. The discussion up to now focused primarily on where the Justices went to law school. To discover other aspects of these Justices’ life, I did a little wiki research and found that there is one striking similarity between all the current Justices (replacing Stevens with Kagan): they have not been outside of the legal world for one day.

Before them, both Stevens and Rehnquist served in WWII for several years, while O’Connor used to be a state senator. In Stevens’ words, “Somebody was saying that there ought to be at least one person on the Court who had military experience… I have to confess that.” It is ironic that a Court which recognizes diversity as a compelling interest is lacking in diversity itself. Homogeneity raises a red flag.

I am concerned with this problem because in my opinion, there are some things that a pure “jurist” might not be able to do. For example, Earl Warren, the governor-turned Chief Justice, successfully mustered nine votes for Brown. Such a manoeuvring takes way more than the skill to apply legal rules. In the present Court, there are no such people. Aside from being liberal/ conservative, the Justices are not that different. When you have a bunch of equally intelligent people but no leader among them, hardly anything significant can be achieved. No wonder there was some opinion that Obama should nominate himself Justice.

-- WenweiLai - 25 Jun 2010

Dan, I'm glad you posted that editorial. It ties in with some thoughts I had on something Rory said earlier. He wrote:

If going to Yale or Harvard was a one-way ticket to the Supreme Court, I would have studied more for the LSAT.

Obviously a diploma from one of these two schools isn't sufficient for a seat on the Court, but is it necessary? Right now, it looks like Columbia grads are virtually shut out of the Court, along with alums from every other school in the country. Does this trend reflect the superior quality of the candidates produced by these two schools, or are grads of other institutions excluded simply by virtue of not being Harvard or Yale alums? If I had to guess, I'd say a little of both.

But, we aren't even talking about Ivy's now, just the two schools, so I don't think the issue is elitism, generally. I think the problem here, which Brooks is also addressing, involves the ramifications for society when certain institutions recognize narrow measures of success and award opportunities accordingly. I believe the admissions committees of both schools have made a point to prove there is no template for getting in. Certainly no LSAT score will punch your ticket. Therefore, it's possible we have a representative sample within each class.

Nevertheless, even where the student bodies of the feeder schools reflect diverse viewpoints and experiences, you're still limiting your field of prospective justices by requiring a Harvard or Yale diploma. Moreover, you haven't begun to address Brooks' critique as it relates to the subset of potential justices within the set of all students at either school. Are risk-takers, innovators and other nonconformists being unwisely selected out of the process in favor of students who view their professors as bosses to be pleased?

This leads into our earlier discourse on grades, but I will pull back here and simply say I'm not in favor of putting laypersons on the Court (don't read this as a ringing endorsement of the legal education system, just a vote that a prospective justice should have been actively involved in the legal profession); however, at the very least, the continued domination of the Court by the Harvard and Yale brands suggests narrow and arbitrary institutional values, rather than the preeminence of the graduates of those law schools, as impressive as they may be.

-- BrookSutton - 28 Jun 2010

I've been reading this post for a while, and have really enjoyed the discussion. I saw an article today in the New York Times about the changing demographics of the Supreme Court. I hadn't thought about it before, but there has been a pretty marked shift in the ethnic/religious composition on the court. What the article doesn't discuss, however, is the increasing lack of diversity in terms of educational/employment backgrounds (especially with regards where one attends school), which Rory has helpfully given statistics to support.

It seems as though we're moving from one extreme, racial/religious homogeneity, to another, educational homogeneity. The two are completely different and I don't mean to compare them, but the above article made me think of this. Just some food for thought - I'd love to hear what other people have to think about this.

-- DavidGoldin - 28 Jun 2010

This Time article argues that Kagen could be adept at winning over conservative Justices. And the supporting evidence offered by the author is something like the fact that she hired several conservatives when she was the HLS dean. Let's wait and see.

-- WenweiLai - 29 Jun 2010

Is anyone else disturbed by some of the Senators' post-facto trial of Thurgood Marshall? Regardless of one's poltical affiliation, I think Republicans are treading in dangerous waters by trying to de-legitimize Kagan by aligning her with Justice Marshall, a hero and trailblazer to so many. Further, am I missing something? Is it so wrong that the court should be used, not as a tool of political activism -- as some would falsely suggest Justice Marshall believed it should be -- but as medium through which to advance principles of social justice? Obviously, I have a special place in my heart for the likes of Thurgood Marshall -- my grandparents attended segregated schools, not by choice; I didn't. This is largely attributable to him, which is but one example of his efforts to advance the rights of all people.

The proposition that the court should be used to advance the interests of not only the advantaged and those who occupy positions of privilege in society, but also for those who don't, is simply not worth debating. By using Justice Marshall to attempt to make a case about Kagan's potential judicial philosophy, Senate "spin doctors" are pissing on his legacy. All in all, though, I respect Kagan's handling of the inquiry, regardless of how absurd it is.

-- JenniferGreen - 29 Jun 2010

I just wanted to share a quote from Dahlia Lithwick's article on the confirmation hearings in Slate regarding Thurgood Marshall. Perhaps it's obvious, but it has helped me swallow this whole thing:

As the nominee takes pains not to look too pained today, the reason Marshall and Roberts are the ones on trial here is also quite plain: Republicans fear that, in this confirmation hearing, Kagan is pretending to be just what Roberts pledged to be (temperate, centrist, and humble), but that once she takes the bench, she will become Marshall (legendary, visionary, liberal). And in a weird piece of symmetry, this Republican fear is the Democrats' most fervent hope. -- JessicaCohen - 29 Jun 2010

Fluency in "transcendental nonsense" seems to be the hallmark of an ivy-league education. Grads of such institutions are better able to uphold the illusion of the inevitable logicality of court decisions. This makes them well suited to writing supreme court opinions.

This article in the NY Times paints Kagan as ready to defer to Congress' decisions on most issues that implicate public policy. Perhaps she has simply adopted the safe, strategic stance, as she has done throughout her career (save for a brief period when young). Or perhaps she really does think that legal reasoning should occupy a realm distinct from social reality. If she's confirmed, it will be interesting to discover the extent to which each is true. It's a shame that nominees feel the need to make themselves so hard to pin down. When, fifteen years ago, Kagan wrote in a law review article that the confirmation process was "a vapid and hollow charade," I wonder if she was planning to one day find herself on center stage.

-- SamWells - 05 Jul 2010

Anyone else read the NYT oped on the Roberts Court and find yourself amazed at the tortured logic? (pun intended?) The Times simply cannot bring itself to state forthrightly there is no such thing as a purely apolitical, technocratic fealty to precedent and that judges maybe have worldviews that matter. So you get bizarre paragraphs like this one, which makes the argument that it was okay for Brown v. Board to overturn the Plessy precedent because the court had the decency to delay 58 years. What? Brown was right because the court waited a decent interval?

We do not argue that precedent must be worshiped and upheld at all costs. If that were the case, as Justice Roberts noted, segregation would still be legal and minimum-wage laws unconstitutional. But when the Brown v. Board of Education decision in 1954 overturned Plessy v. Ferguson from 1896 and outlawed segregation, it came after many years of relentless legal efforts against Jim Crow by Thurgood Marshall and many others. It was clear that the legal landscape was changing.

When the Roberts court overruled precedent in the Citizens United case, it did so far more abruptly. The dissenters, led by Justice John Paul Stevens, said the majority “blazes through our precedents” in a “dramatic break from our past.” It was nothing other than judicial activism when the court five months later stepped directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state’s campaign finance system. The message to other states and cities with similar systems was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way.

This tack is a nonstarter (just insert "Warren court" for "Roberts court" to see that these arguments go nowhere). To really challenge Roberts' jurisprudence, you can't just make tortured arguments about conditions when precedent can be overturned - you need to be willing to say clearly Roberts' judicial worldview is normatively undesirable, and that we need judges with a different worldview. This is not an engineering problem - it's about moral worldviews.

-- DevinMcDougall - 05 Jul 2010

This oped reminds me of two Con Law cases. In Casey, the majority (liberals) asserted stare decisis, while the dissenters (conservatives) argued that wrong decisions should be overruled. Later, the two groups changed sides in Lawrence: the liberal majority overruled Bowers, while the conservatives argued for stare decisis. So what on earth is stare decisis? It’s hard not to think of it as a mere tool to mask the judges’ preference for a prior decision when they say it should be followed due to stare decisis. When they don’t like a specific decision, the principle would suddenly be forgotten.

In my opinion, the principle of stare decisis may not, and should not mean too much in a court with the power to change the precedents. I am interning with the appeals team in the office of the prosecution in a tribunal, and we have a prosecutor who has just joined us from the trial team. In an internal meeting, the prosecutor listed the prior case law in detail to support a point that he was going to make. After the presentation, the senior prosecutor of the team asked him, “so why should the appeals chamber follow the case law? Don’t forget they have the power to change it.”

So I agree with Devin that the oped’s reasoning is flawed: for the High Court, what matters should not be stare decisis, especially considering the frequency with which they make not-so-sound decisions. But I want to raise another question (this seems to be totally unrelated to the topic of the discussion…): should there be stare decisis in lower courts? To my knowledge, in most civil law countries, when a lower court judges disagree with a higher court precedent, all that they have to do is to write down in detail the reason why they are not following the precedent, and then rule according to their own opinion. Prior decision still has some kind of binding force in those countries, because it takes additional efforts for a judge to write a detailed opinion explaining the reason not to follow the precedents, and most judges may not have time or interest to do that.

However, at least in those countries we wouldn’t see a decision saying that something is wrong but the court is forced to accept it. When I just started learning law, I thought such decisions are just unbelievable. How can judges give a decision that they think is wrong? But later I began to recognize that my dislike for it may be based my assumption that law is only about justice. So what is the advantage of maintaining a wrong decision made by a higher court? Stability. If every court is allowed to make decisions at will regardless of what higher courts have said, it will be hard for people to expect the result of their suits when they walk into court, or when they decide whether they should walk into court or not. I still don’t like it, but now I do think there is some value for stare decisis to exist in lower courts.

-- WenweiLai - 08 Jul 2010



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