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The Danger of Legal Precedents

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.


For example, In re Gault (1967) involved a 15-year-old sentenced to three years for making lewd phone calls. The U.S. Supreme Court ruled that Gault had a right to an attorney and to refuse to testify against himself: due process rights. Gault wasn’t being grounded; he was being sent to juvenile prison — where I shudder to think what likely could have happened to him.

Ten years later, California’s courts decided In re S. (1977) and cited In re Gault as a precedent. Instead of being punished for a crime, this case involved a 14-year-old minor committed to a mental hospital. Both cases involved the state depriving a minor of his liberty without due process. But where Gault’s parents were apparently trying to keep their son out of a situation that, under the best of circumstances, would have been traumatic, In re S. was almost the opposite: a parent trying to obtain treatment for a mentally ill child. There’s a surface similarity, but the intentions and likely consequences were radically different.

Similarly, Superintendent of Belchertown State School v. Saikewicz (1977) ruled that a severely mentally retarded man in a state mental hospital, suffering from leukemia, should be allowed to die without medical treatment. Saikewicz’s doctors decided that Saikewicz was likely to die soon of old age anyway, didn’t understand the situation, and so he shouldn’t be treated.


The Massachusetts Supreme Judicial Court agreed and wrote a sentence that could have come from a Marx Brothers comedy about Nazi Germany’s T-4 program to exterminate those “unfit to live”: “In short, the decision in cases such as this should be that which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.”

The same court in Guardianship of Roe, Matter of (1981) considered not an old man nearing the end of life and cancer, but a paranoid schizophrenic minor identified as Richard Roe III. While hospitalized, Richard attacked other patients. At the request of the state mental hospital, Roe’s father authorized them to administer anti-psychotic medications to Roe.

Richard had a whole life ahead of him and, unlike Saikewicz, might have recovered from his illness if treated. Instead, the judges decided they knew better than Roe’s father and doctors — and whatever Richard’s preferences about sanity might have been before becoming sick, “the likelihood of improvement or cure enhances the likelihood that an incompetent patient would accept treatment, but it is not conclusive.” Which would you prefer: madness or sanity? It is so hard to decide what someone else might prefer! Richard ended up on the street, continually in trouble with the law (as with so many of the mentally ill homeless “protected” by such decisions). The resulting fallout shattered his family.


Following precedents makes sense — when you properly identify that a precedent involves a similar situation. But so often, judges cherry-pick from existing precedents that really are not the same situation. As I will explain in later articles, this misuse of precedents has often played a part in how the courts have so twisted our Constitution.

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