July 20, 2018
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Stare Decisis

by Jonathan Wallace jw@bway.net

"Stare decisis" is defined by Google Dictionary as "the legal principle of determining points in litigation according to precedent". This rather innocuous and even obvious-sounding doctrine, however, is extremely powerful and (as we are now discovering) is even a cornerstone of democratic culture and practice.

In 1977, I had the honor of taking a constitutional law class with Archibald Cox, whom a few years before had been fired as Watergate special prosecutor by President Nixon. Cox was courtly, old school, deaf, with a square gray haircut and a bow tie. One day, he regretfully told us the story of the Supreme Court's two rulings on the question of whether young Jehovah's Witnesses could be forced to salute the flag at school. In 1943, in the Barnette case, the Supremes had overruled their own Gobitis decision of just three years before, and held that the salute could not be compelled.

As a civil libertarian, I applauded the Barnette result and believed that, if the Court caught itself in an error, it should correct it as soon as possible. Cox felt differently. He explained that the Court was a very fragile institution indeed. Unlike the executive, which can send soldiers or FBI agents out to use force, or Congress, which can deny the other branches the money to carry out actions, the Supreme Court relies on its own credibility--what I would call its mana--to get the other branches to perform its edicts. Cox probably quoted us Andrew Jackson's infamous statement, when the Marshall court issued an order he did not like: "John Marshall has made his decision, now let John Marshall enforce it".

Professor Cox believed that, whenever the Supreme Court reverses itself, it undermines its own credibility and weakens itself as the most insecure player in the three branches of government. Therefore, decisions should only be reversed when critically necessary and after the passage of much time and occurrence of significant social change. He had no problem with Brown v. Board of Education. But he thought that the Court should not have reversed Gobitis so quickly. I was rather shocked at the proposition that another generation of Jehovah's Witness youngsters should have been forced to salute the flag (or withdraw from school) before the Court did anything about it.

But I understand his point today. In public school, year after year, I watched history teachers write on the chalkboard a quote attributed to Santayana (but never precisely sourced) that "He who forgets the past is condemned to repeat it". This seemed such a truism that I assumed for a very long time it could not be true.

Then I read Renan's What is a Nation?, one of the ten or twenty books or essays encountered in a lifetime which wrote me, in which Renan says that nations are based not just on the things we remember together (the Declaration of Independence, Fort Sumter), but on what we forget (murdering all the Native Americans, invading Mexico and Canada, seizing Hawaii in a coup). This got me thinking, across the years, about historical memory, and in my Mad Manuscript on the idea of free speech (now 6,287 pages--that is NOT a typo), I defined an activity, "the Forgettery", in which we elide and put away all of the evil memories and redefine ourselves as something we are not.

I place stare decisis in the context of historical memory. Memory is important in individual human life and in polities for both moral and practical reasons. First, if we have a commitment to truth, if we want to live in truth, we must remember. Regardless of whether you share this particular moral value, however, you must typically remember in order to live. In my Mad Manuscript and here in the Spectacle, I have used the metaphor of the passengers on the Titanic grouped around a Senator Inhofe-type character, insisting the ship has not hit an iceberg--that we forget, in the critical moment, that icebergs exist or can sink ships. I have learned to analyze the voice transcripts of plane crashes and the explosion of the Challenger from the point of view of whether we can acknowledge, in the potentially fatal moment, the things we remember and know to be true, or cling to the idea that everything is sui generis, and that there is no precedent. Prior to the Challenger launch, a dialog took place for an entire night between those technicians who remembered that O-rings could freeze and crack and that a shuttle had never been launched in a temperature this cold. Their adversaries who prevailed, were the politicians who denied the importance of memory, who saw the launch as a unique event in the present which was unconnected to any precedent. Every unique human on board, people who had labored and struggled for years to join the crew, and Christa McAuliffe, the "schoolteacher in space", who bore with her all our hopes and dreams, died as a result of that forgetting.

Donald Trump is a Solvent of historical memory--his statements that "I alone" can do this or that include as a subtext that nothing before him has any significance. He lives in a sick world of authority without responsibility; responsibility is memory. In a world without precedent, he goes to meetings with Vladimir Putin and Kim Jong Un completely ignorant of the history of our relations; procedural guarantees we have given immigrants for decades are forgotten; national parks are reduced in size by 80% so they can be mined. We are becoming a nation with no past, all impulse, id and improvisation.

Chief Justice John Roberts was my classmate. I remember a quite, serious and very smart student who vanished from our ken after he made Law Review on grades at the end of first semester. Roberts may have been in Cox's huge class with me and heard him discuss stare decisis. Against a majority of voices confidently predicting the Court will now overrule Roe v. Wade, there is an equally steady minority saying things like "The Supreme Court will be reluctant to take away a constitutional privacy right, even if that right was granted with dubious reasoning". These commentators tend not to confront the fact that in the Janus case which eviscerated public unions, the Supreme Court, just weeks ago, overruled its own 1977 precedent.

The revolution has already begun, and John Roberts is leading it. For years, though I did not share his values, I hoped that he was judge-like. In two criminal cases in which I recently participated arising from the same arrest, in which protesters had stood still with linked arms, one judge aggressively reinterpreted and bent law and precedent to find that a peaceful act of civil disobedience constituted a "riot". The other, watching the same video of the arrests, said, "I see no riot". The first judge had appointed himself super-prosecutor, filling in the gaps in the case. The second, who was politically and culturally indistinguishable from the first, had a sense of integrity about being a judge--was "judgelike"--and could not bring herself to convict, regardless of her personal feelings or beliefs about the protests. Stare decisis lives and breathes in the world of that second judge, not the first, for whom historical memory is unimportant.

President Trump, in his forgetting, has given everyone else permission. A Navajo man told me that the white people in towns abutting his reservation have become ruder, more loudly hateful since Trump, who has enabled them to forget former cultural accomodations under which they kept their hatred to themselves. Historically, in kleptocracies, quite intelligent and cultured people who might have acted in an exemplary way in a democracy will themselves join everyone else feeding at the trough, because "all the kids are doing it". I see my classmate, John Roberts, joining in that revolutionary act of forgetting.