I recently wrote about the original intent of the First Amendment’s establishment clause — and alluded to how the Supreme Court (and even more so, the ACLU) has unmoored itself from that original intent. Part of the problem is the role of precedent.
For those who weren’t paying attention in high school government class: stare decisis is the legal principle that if there is an existing judicial decision about a particular issue, courts should usually follow that existing precedent. There should be serious evidence that the existing precedent was wrongly decided, or produces serious inconsistencies or injustices, before a court overturns it.
One of the arguments in favor of stare decisis is that a stable court system — one where everyone knows the rules, and where the rules don’t change suddenly or capriciously — is of value in and of itself. This can even be true if there is a little bit of injustice or absurdity in the results.
There are serious problems with this worship of precedent. One is that judges often send their law clerks to look for precedents that justify the results that they have already decided “make sense.” Because appellate judges don’t see the victims of these horrible crimes before them, or the physical evidence, or hear the witnesses, it is easy to see this process as simply a fascinating intellectual game.
The bigger problem, and the one that I can tell you goes deep into American history, is the problem of interspecies breeding. By that, I mean that a precedent that is relevant to one question gets used to decide another question that has a superficial similarity — but other differences mean that it really doesn’t apply. Unlike trying to breed animals of different species (where the results, if any, are usually sterile), continuous interspecies breeding of precedents just produces increasingly bizarre offspring.