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Is stare decisis Latin for "we do what we want"?

Howard Bashman has published a Congressional Research Service report on "The Supreme Court’s Overruling of Constitutional Precedent: An Overview" [PDF]. It's a must-read for anyone following the Supreme Court nominations. Here's the opener:

"As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis ("to stand by a decision"). The general rule of stare decisis is not an absolute rule, however, and the Court recognizes the need on occasion to correct what are perceived as erroneous decisions or to adapt decisions to changed circumstances. In deciding whether to overrule precedent the Court takes a variety of approaches and applies a number of different standards, many of them quite general and flexible in application. As a result, the law of stare decisis in constitutional decision making can be considered amorphous and manipulable, and it is difficult to predict when the Court will rely on stare decisis and when it will depart from it. This report cites instances in which the Court has overruled precedent as well as instances in which it has declined to do so, and sets forth the rationales that the Court has employed."

The first application author George Costello uses? None other than Roe v. Wade.

Hat-tip to Mike Cernovich, who writes, "The report's conclusion?  The Supreme Court overrules precedent whenever -- and applying whatever standard -- it wants.  No surprises there, but it's always nice to have scholarship confirm 'common sense.' "

Posted by Product Team on December 8, 2005 at 09:37 AM | Permalink | Comments (1) | TrackBack (0)


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