Sunday, February 24, 2019

The Chief Justices’ Marriage to Stare Decisis

An Analysis of Burger’s, Rehnquist’s, and Roberts’ Relationship with Precedent

By Kieran T. Murphy
Kieran Murphy, a second year student at Albany Law School, is a member of the Albany Law Review, an associate member of the Anthony V. Cardona '70 Moot Court Board, a Dean Thomas Sponsler honors teaching fellow, and President of the Class of 2020.
Kieran has served as a judicial extern both to the Hon. Thomas J. McAvoy at the United States District Court for the Northern District of New York, and to the Hon. Judge John C. Egan, Jr. at the NYS Supreme Court, Appellate Division, Third Department. He has received multiple moot court awards, including the Hon. Judith S. Kaye Advocate Award from the New York State Bar Association.
Prior to attending law school, Kieran earned degrees in Integrative Neuroscience and Economics from Binghamton University, graduating in 2017. This summer, Kieran will be at the law firm of Milbank, Tweed, Hadley & McCloy, LLP in Manhattan as a summer associate. This paper was prepared for Prof. Bonventre's Supreme Court Seminar in the fall of 2018.

“I don’t get to pick and choose which Supreme Court precedents I get to follow . . . I follow them all.”   During his controversial nomination process, now-Justice Brett Kavanaugh sat directly in the lap of stare decisis while answering Senate Judiciary Committee questions—a fallback that has become commonplace for recent judicial nominees.

For decades, Supreme Court Justices have relied on stare decisis to skirt difficult questions concerning personal or political views on case law, as well as to maintain a neutral image of balance at the judiciary.   What becomes most important, however, is not how precedent is used as a talking point during the confirmation process, but how the doctrine plays out on the Court after a certain Justice has been confirmed.

The stare decisis doctrine has monitored the Court for hundreds of years, dating back to eighteenth century English common law. Stare decisis et non quieta moevre, translated to mean “to stand by matters that have been decided and not to disturb what is tranquil” is the idea that, in order to maintain uniformity among changing courts, prior decisions must stand as final word. While clear in translation, most courts have maintained that, while stare decisis is a vital element of judicial decision making, it “is a principle of policy and not a mechanical formula to the adherence to the latest decision.” As such, interpretations of the doctrine at the federal level have been severely scattered due to its inherent flexibility.

The dichotomy that exists between the importance of the Supreme Court’s marriage to precedent and the obvious, fast-changing social policies of the 20th and 21st centuries is an interesting one. While the Court’s foundational philosophy revolves around a need to maintain stability in decision making, the fast-changing social construct of today’s world makes doing so nearly impossible in certain situations. The implementation of stare decisis in the Justices' chambers as a result of this ongoing social pressure is much more important than their pre-written speeches on Capitol Hill. As such, this paper will focus on the doctrine’s evolution as it relates to three separate, recent eras of  the Supreme Court: (1) the Burger Court, (2) the Rehnquist Court, and (3) the current Roberts Court.
To read the paper, open HERE.