Scalia on Stare Decisis
Vivek Krishnamurthy live blogged Justice Antonin Scalia’s visit to Yale Law, including the Q&A.
I found this especially interesting:
Criterion for following stare decisis should not be whether you think the decision is mistaken or not. The criteria should be how wrong it was.
Scalia uses three criteria in determining whether to overturn precedents:
1) Was the decision wilfully wrong?
2) Has the wrong ruling been generally accepted? (For example, Scalia thinks the incorporation doctrine, which uses the 14th Amendment to apply the Bill of Rights against state governments, is mistaken. That said, it is now so widely accepted that Scalia wouldn’t think about reversing it).
3) Does the existing precedent put me in the role of a legislator rather than a judge? On the abortion question, for example, Roe v. Wade establishes that laws placing “undue burdens” on women’s reproductive choices are unconstitutional. Scalia has no idea on how a judge can figure out whether something is an “undue burden” or not. Such questions should be left to legislative determination.
This quip is even more direct:
Life is too short: you can’t question everything in every case! “Do you want us to review Marbury every time? Go on to the next mistake.”
That strikes me as exactly right. Marbury was indeed incorrectly decided. It is now so ingrained in the system, though, as to be universally accepted as the way it is.