Don’t Bind Me to “Whizzer” White

Judges should abandon the doctrine of stare decisis and welcome the citation of non-legal texts in attorney briefs. The power of an argument derives from the quality of its reasoning and, to a degree, its poetics. There should be no power in its “position,” such as the fact that it originated in a court. The benefit of being on a court should consist solely in the fact that judges enjoy prominence in our society and, as such, their words garner more attention than those of other citizens. Judges’ words should be given no additional power simply because of the judge’s title.

The Ancient Greeks understood this. Cleon was more prominent than Diodotus, but his argument, being barbarous, failed. On the other hand, Pericles was adored, not because he was an important figure in society, but because he was a clear and eloquent thinker.

I recognize that becoming a judge is difficult. It suggests a level of persistence, intelligence, integrity, and wisdom that is uncommon in most people. It suggests this; it doesn’t guarantee it. William Rehnquist was Chief Justice of the United States. He was also a drug-addicted hypocrite whose judicial philosophy was to decide cases according to his personal prejudices. His First Amendment jurisprudence made that plain. I say good riddance to William Rehnquist. Stare decisis, however, says Rehnquist lives.

Of course, if a judge’s opinions are worthy of guiding us beyond their authors’ corporal lives, that’s fine. There have been great minds in the American judiciary (Brandeis and Holmes come immediately to mind) whose opinions are deserving of special and continued consideration. But such minds are rare. We should not pretend that every judge is of such caliber. Yet that is how stare decisis works; James Madison’s and Jean-Jacques Rousseau’s comments are merely “persuasive,” while Warren Burger’s and Sandra Day O’Connor’s are “binding.” This is ludicrous. [Ironically, Justice Thomas might agree with me.] Instead of following people just because they happen to be a judge, let’s treat nothing as binding and everything as persuasive. The question then becomes what is most persuasive.

But what about predictability? Won’t unmooring the courts from precedent result in chaos? No. Abandoning stare decisis will not untether courts from the pursuit of reason and truth. These things are timeless. They will forever form the basis for all quality opinions, legal or not. By abandoning stare decisis judicial legitimacy and consistency will come not from adhering to a rule simply because, good or not, some prior court said it was the rule. Rather, it will derive from the repeated application of the best rules simply because they have proven to be the best rules.

This is, in fact, what happens anyway. Courts part with precedent when it’s obvious that they must (Dred Scott no longer controls, thank god), but this process takes too long. It results in bad opinions having an unacceptable level of control over our society. It also discourages diligent attorneys from mining mankind’s vast, non-caselaw-related, intellectual riches for gems.

So, let’s abandon stare decisis. Let our jurisprudence be guided by bright lights of thought wherever they may be found. Let the grip of mediocre opinions written by lesser jurists retire when their authors do.

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