« These are not very bright guys, and things got out of hand | Main | The truth of SB8 »

Tuesday, September 21, 2021

Stare Decisis as Crying Wolf

Stare decisis is in the news again as the Supreme Court begins to consider requests to overrule abortion-rights precedents. To a great extent, the justices have spent years preparing for this moment, as every recent debate over precedent has seemingly had abortion rights looming in the background. Dissenting justices have adopted certain rhetorical strategies, and majority justices have had to respond. 

I explore this rhetorical dynamic in a forthcoming paper (Reason and Rhetoric in Edwards v. Vannoy) and reproduce a slightly edited excerpt below:

Imagine that you are a justice who generally hopes to protect existing case law from erosion or repudiation. You might think it is a good idea to complain about each and every instance of overruling, so as to keep stare decisis salient and make the majority coalition pay an ever-increasing “price” in professional and public esteem. But you would also worry about coming across as Chicken Little, or the Boy Who Cried Wolf. It isn’t always a big deal to overrule, even when doing so is wrong. And, sometimes, overruling is positively the right thing to do. Much as the Court would lose face by overruling too freely, as though precedent were legally irrelevant, dissenters can sacrifice their credibility by acting as though every new overruling is a fresh End of Days. So, what’s a dissenter to do?

One way of squaring the rhetorical circle is to try and have it both ways at different points in time. This solution requires selective forgetting: the importance of stare decisis is trumpeted in dissent after dissent, but the doom-and-gloom rhetoric attending each dissent is instantly swept under the rug. The point of this strategy is to make each transgression of stare decisis seem unprecedented, as though stare decisis had been eroded for the first time. A less helpful understanding of events, namely, that stare decisis has proven to be quite flexible, is thus kept out of view. This approach counts on the reader’s short memory—and, ironically, on the forgettability of the dissenter’s earlier rhetorical flourishes. 

All this raises the question of how the majority coalition might respond to our imagined dissenter’s rhetorical strategizing. The majority might do just what the dissenter hopes: wince at each rhetorical lashing, try to avoid the next one, and generally think hard before overruling. But there is another salient possibility: much as the public could come to wonder whether the dissenter is overdoing it, the majority might decide that there is no satisfying the opposition. Someone who cannot see that overrulings are sometimes justified—or just not a big deal—might not be worth appeasing. Thus, the majority could become numb to the lashing, and unafraid to overrule. The strong rhetoric against overruling would have defeated itself.

That reasoning can be taken still further. A cynical majority might put itself on the lookout for precedents to overrule. Not just any precedent will do, of course. Overruling cases that are either too important or too sound would tend to feed the dissenter’s critical flame. But when precedents are contrary to the would-be dissenter’s view of the merits, or else not terribly important, a decision to overrule can put the dissenter in a bind: she would have to moderate her rhetoric or else risk coming across as crying wolf. Notably, Ramos and Edwards respectively fit each half of that strategy, with Ramos, which established a right to unanimous criminal jury verdicts, appealing to (and splintering) the Court’s left wing and Edwards, which declined to apply Ramos retroactively in habeas cases, “overruling” only a never-used exception.

Posted by Richard M. Re on September 21, 2021 at 01:58 PM | Permalink


You describe this in detail. in a creative way hard to find But the government should take action to end abortion. to be better and best

Posted by: Nano Machine | Sep 27, 2021 2:44:46 PM

You elaborate this thing in a really creative way, it's rare but governments should have to take steps over overrule abortion for the better and best.

Posted by: Alex Mercer | Sep 25, 2021 6:45:07 AM

In the case of abortion, there is no need to create a new Procedural Due Process Law, once the Substantive Due Process error that denies the personhood of the son or daughter residing in their mother’s womb is corrected. The inherent Unalienable Right to Life of that particular child residing in their mother’s womb would then be “guaranteed specifically by the [14th] Amendment”., all sons and daughters of human persons being “equal before the Law”.

Posted by: N.D. | Sep 23, 2021 8:57:12 AM

Quotes from Mother Teresa on Abortion- St.Joan Of Arc Website :

“The Greatest Destroyer Of Love And Peace Is Abortion.”

"It is a poverty to decide that a child must die so that you may live as you wish."

“What is taking place in America, is a war against the child. And if we accept that the mother can kill her own child, how can we tell other people not to
kill one another."

“America needs no words from me to see how your decision in Roe v. Wade has deformed a great nation. The so-called right to abortion has pitted mothers against their children and women against men. It has sown violence and discord at the heart of the most intimate human relationships. It has aggravated the derogation of the father's role in an increasingly fatherless society. It has portrayed the greatest of gifts -- a child -- as a competitor, an intrusion, and an inconvenience. It has nominally accorded mothers unfettered dominion over the independent lives of their physically dependent sons and daughters" And, in granting this unconscionable power, it has exposed many women to unjust and selfish demands from their husbands or other sexual partners. Human rights are not a privilege conferred by government. They are every human being's entitlement by virtue of his humanity. The right to life does not depend, and must not be declared to be contingent, on the pleasure of anyone else, not even a parent or a sovereign." (Mother Teresa -- "Notable and Quotable," Wall Street Journal, 2/25/94, p. A14)”

Posted by: N.D. | Sep 23, 2021 8:28:03 AM

Dear Nancy Not-Pelosi: It's always tragic to encounter someone who suffers from being born without a sense of humor. I hope someday you can obtain treatment for that debilitating condition.

Posted by: kotodama | Sep 22, 2021 5:36:45 PM

One can know through both Faith and reason that I am not Nancy Pelosi.

I recognize that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, not Caesar, while recognizing that “The Holy Spirit was not promised to the successors of Peter that by His revelation they might make known new doctrine, but that by His assistance they might inviolably keep and faithfully expound the Revelation, the Deposit of Faith, delivered through the Apostles.”

And, just as a rose by any other name, would still be in essence, a rose, my DNA is uniquely different than Nancy Pelosi’s, and would continue to be even if her parents had not named her, Nancy.

Posted by: Nancy | Sep 22, 2021 1:16:12 PM

Nancy Pelosi, is that you?!

Posted by: kotodama | Sep 22, 2021 12:05:41 PM

“If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment.”- Roe v. Wade, 410 U.S. 113 (1973)

There is not one iota of evidence to even suggest that the conception of a son or daughter of human persons, could possible be anyone other than a human person. You have been you from the moment of your conception, and I have been I since the moment of my conception.

At the end of the Day, overruling Stare Desisis, in regards to precedent grounded in an error in Substantive and thus Procedural Due Process Law, in no way, shape, or form, could be construed to be unjustified or compared to crying wolf, when there is no danger to be found. This denial of personhood set a dangerous erroneous precedent for both the posterity, and prosperity of this generation, and generations to come, while violating the inherent Right to Life, upon which our inherent Right to Liberty and The Pursuit Of Happiness depends, for certain human individuals.

One can know through both The Catholic Faith and reason, that it is a statement of fact that a human person can only conceive a son or daughter, who is, from the moment of their conception, in essence, a human person. The fact that Roe v. Wade did not include evidence to challenge this self evident Truth, that can be known through both Faith and reason, is evidence enough that the error that occurred in Substantive Due Process Law, was the denial of the personhood of some beloved sons and daughters residing in their mother’s womb so that they could justify denying Procedural Due Process Law, for some beloved sons and daughters residing in their mother’s womb.

Posted by: Nancy | Sep 22, 2021 11:43:41 AM

Through your pen I found the problem up interesting! I believe there are many other people who are interested in them just like me! How long does it take to complete this article? I hope you continue to have such quality articles to share with everyone! I believe a lot of people will be surprised to read this article! Thanks for your post!

Posted by: cookie clicker | Sep 22, 2021 4:16:20 AM

Post a comment