Stare Decisis

One of my worst classes in law school was constitutional law. I even bombed it on the bar. I don't know that for sure, but I do know that I guessed at every conlaw MBE question the bar examiners threw my way.

This time around, I'm trying a new way to learn it, by reading the cases. I found a nifty little website that summarizes cases for me, which makes it WAYYYY easier to figure out the issues and the law that was created from the cases. I have trouble reading the entire decisions because 1) they're really long and 2) I get sidetracked about the supposed issue when I read the decisions.

What I've been thinking about is stare decisis. Stare decisis essentially means that judges and justices give deference to cases heard prior to the one at hand. The judges aren't bound to the precedents, but they do often rule in the way that the prior case was decided.

I wonder, why? Just because someone else made a decision before you, why give that decision so much power? Who's to say that John Marshall or Benjamin Cordozo were any smarter about the issues than, say, Justice O'Connor (I miss you!!) or even Justice Scalia? Or me? I don't see the point. One could argue that the general issue may have been understood better in the context of those times, but that's just crap. (And I know Scalia would agree with me, which makes me shiver.)

I mean, look at the terrible decisions made during slavery, or during the establishment of many labor laws. In 2008, we look at those cases as judicial disaster.

I hope that one day we look at the cases surrounding the death penalty and think that they are just as awful as Dred Scott.