I'm not sure how to react to Judge John Roberts' answer to a question about respecting precedent.

"Precedent plays an important role in promoting the stability of the legal system," Roberts wrote. "A sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."

I've gone back-and-forth over this one.

On the one hand, the judge is perfectly corrct. Precedent is important, and should not be overturned lightly or because of mere political considerations. To the degree that a precedent has become embedded, it is better to limit the precedent or distinguish cases from it rather than overturn it. After all, stare decisis is important,.

On the other hand, a rigid adherance to stare decisis is not desirable. After all, even though today's judges follow in the footsteps of their predecessors, that does not mean that they must be bound by them. Brown v. Board of Education required teh overturning of a number of decisions dating back some six decades. Should the precedent value of Plessy v. Ferguson have been blindly respected, despite the fact that its holding flew in the face of the clear meaning of the Fourteenth Amendment to the US Constitution? Should ANY precedent be held so sacred that preserving it must outweigh getting the decision right?

It is my profound hope and earnest belief that Judge Roberts, in giving this written response, intended to communicate that he would respect precedent with his eyes wide open. Bu if I am wrong, and the statement is meant to communicate that he would uphold a wrong decision for the sake of stability, his confirmation risks continuing the damage done to American constitutional jurisprudence by Kennedy and O'Connor in the Webster case.

I think this would be a fruitful area for conservative senators to look at.

Posted by: Greg at 04:28 PM | Comments (2) | Add Comment
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