We’ve recently raised a few issues regarding justifications for bigotry. What especially rankles some of us is the often-heard argument that people should do something a particular way (recently, the issue is preventing gay marriage) because that is the way that it has been done in the past.
What a ridiculous-sounding principle on which to base an argument! Ridiculous sounding, unless you are a lawyer arguing an important case. In courtrooms across this country, multitudes of lawyers lawyers stand up every day with straight faces and proceed to argue to judges that a case should be decided a particular way solely because a previous and similar case was handled that same way.
In law, this principle that judges should rely on precendent is given the obscure and mysterious-sounding label “stare decisis,” from the Latin, “stand by the thing decided.” [Stare decisis et non quieta movere, meaning “to stand by the decisions and not to disturb settled points”].
There is the great power in this heuristic. At least it’s an equal opportunity principle: Analogizing to old cases is a technique that can be used by crafty opportunists, as well as good-hearted seekers of justice.
Though we are tempted to scoff at this principle (of relying on precedent) when it is employed by bigots, we need to keep things in context. That very same principle is the heartbeat of justice. How strange, you might think, that such an amoral principle determines outcomes of important cases! That’s the way it is, however. I’ll flesh out this principle with some citations from real-life legal cases. Though most of these case are Missouri cases (I practice law in Missouri), similar quotes can be found from cases from every other state and federal jurisdiction.
Where the same issue or an analogous issue was decided in an earlier case, stare decisis provides that prior authority stands as authoritative precedent unless and until it is overruled.” Courts advise that we must be “mindful of the sanctity of stare decisis” [see State v. Grant, 810 S.W.2d 591, 592 (Mo.App. 1991)] and that “Stare decisis is the cornerstone of our legal system.” [M & H Enterprises v. Tri-State Delta Chemicals, Inc., 984 S.W.2d 175 (Mo.App. S.D. 1998)]. Therefore “ . . . stare decisis must prevail “free of reluctance, hesitancy or doubt as to the propriety or fairness of doing so.” [Slagle v. Minich, 523 S.W.2d 160 (Mo.App. 1975)].
According to mainstream legal scholars, doing things the way we’ve always done them leads to needed “stability and predictability in the law.” [421 O’Dell v. School Dist. of Independence, 521 S.W.2d 403 (Mo. 1975)] We must “keep the scales of justice even and steady, and not be liable to waiver with every new case presented.” [Kennedy v. Watts, 125 S.W. 211 (Mo.App. SD 1910)].
But what happens when a morally compelling case like Brown v. Board of Education comes along?For these occasions: The courts have come up a counterpunch: Even though stare decisis “serves exceedingly well in most instances,” we should depart from SD where there are good “reasons” for doing so. [Savannah R-III School Dist. v. Public School Retirement System of Mo., 950 S.W.2d 854 (Mo. 1997)]. After all, “the fact that a rule has long been followed does not require that we continue to follow it, if the reason for the rule has ceased to operate . . .” [Bituminous Cas. Corp. v. Aetna Life and Cas. Co., 599 S.W.2d 516 (Mo.App. E.D. 1980)]. The law should not be “static” and . . . should not blindly follow the rule of stare decisis” [Bituminous Cas. Corp. v. Aetna Life, 599 S.W.2d 516 (Mo.App. E.D. 1980)] Therefore . . . never follow SD where precedent is “clearly erroneous and manifestly wrong.”[ Novak v. Kansas City Transit, Inc., 365 S.W.2d 539 (Mo. Banc 1963)]
Justice William Douglas warned that a judge cannot avoid reexamining precedents “unless he lets men long dead and unaware of the problems of the age in which he lives do his thinking for him.” [Douglas, “Stare decisis” 49 Colum.L.Rev. 735, 736 (1949), as cited by Keith v. Keith, 599 S.W.2d 214, 218 (Mo.App. S.D. 1980)]. Oliver Wendell Holmes found it to be “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” [The Path of the Law, “10 Harv.L.Rev. 457, 469 (1897)].
After all, “The devil can cite Scripture for his purpose.” [William Shakespeare, The Merchant of Venice, Act I, Sc. iii, L. 95]. It’s hard to think of any other profession where such a “principle” garners any respect. What would you think, for instance, if your surgeon resorted to “precedent” to justify her use of un-sterilized instruments?
In my sardonic moments, I summarize the legal use of precent as follows: Judges should ALWAYS follow precedent, except when they shouldn’t.
We laugh at bigots when they justify their bigotry on the fact that they have been bigoted in the same way in the past. This post, however, is my caveat that thoughtlessly relying on precedent is actually a powerful salve and temptation to frail cognitive animals like human beings (regardless of the purpose for which we are relying on the principle).
Whether it’s because of the availability heuristic, fatigue, runaway emotions or because of our legal system’s stamp of approval on stare decisis, when we start to laugh at bigots’ reliance on precedent, they probably won’t be laughing with us.
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