As the hypocrisy express rolls rapidly toward rubber-stamping Judge Amy Coney Barrett’s nomination to the U.S. Supreme Court, I thought it might be useful to provide a glossary of terms that may be used during Senate confirmation hearings — if there are any.
While they may seem arcane, the words and phrases I’ll discuss today and in the coming weeks will provide insight as to the type of justice she may be and the direction in which the court could move when she dons her robe and takes her seat on America’s highest bench.
Let’s start with “stare decicis” which is Latin for “it is what it is.” OK, it’s actually Latin for “to stand by things decided,” and it’s one of the most important doctrines in American jurisprudence.
An opinion issued by the Supreme Court in Kimble v. Marvel Enterprises provides a clear and concise description of the doctrine: “[stare decisis] promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.”
That’s good stuff because it means newly appointed justices can’t show up and overturn decades of legal precedent on a whim. That doesn’t mean decisions are set in stone. It does mean justices should have good reasons for ignoring precedent. The quality of the legal reasoning used to reach a decision and evolving understanding of facts related to a case are two factors that are often cited when the precedent is ignored.
For example, in 1954’s landmark ruling in Brown v. Board of Education, the court overturned the principle of “separate but equal” established 60 years earlier in Plessy v. Ferguson. Evolving attitudes about race and the racial segregation fostered by Plessy were major factors in the decision.
In a more recent abandonment of the doctrine, the 2018 5-4 decision in Janus v. AFSCME wiped out a 41-year-old precedent established in Abood v. Detroit Board of Education that allowed public sector unions to collect “fair share” fees from non-members. The Court’s conservative majority cited a number of reasons for weakening organized labor including the fact that the precedent had proved unworkable and the First Amendment rights of non-members trumped stare decisis.
This leads us to an examination of Barret’s views on this vital principle. In a 2013 article written for NDL Scholarship, Notre Dame’s law review, she stated “Stare decisis is not a hard-and-fast rule in the court’s constitutional cases,” and noted she believed reversals would not do great damage to the Court’s reputation.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it,” she said.
And while she will undoubtedly refuse to answer questions about her views on specific issues, this article and others concern supporters of the Affordable Care Act and a women’s right to choose which will rely on adherence to stare decisis to survive pending litigation.