The Trouble with Precedent

In the debate surrounding the appointment of Roberts to the Supreme Court, there is a lot said about precedent. Indeed, it seems to be one of the fundamental arguments any time the courts come up in discussion.

The basic idea is that judges should respect the rulings of previous judges to help provide continuity of law and apply the law similarly to different cases. That all sounds good, except that precedent has been raised to such a level that it is treated as law itself.

Take the Roe vs. Wade decision, for example. It is often referred to as "the law of the land" or "settled law." In fact, it is not law at all. It is merely a court decision. The court cannot legitimately make law. So they play a semantic game and call it "precedent." Then they proceed to treat the precedent as the law of the land. If we had treated precedent so highly in the past, slavery would never have been abolished, since there was a Supreme Court decision validating it as legal.

The latest tactic of those who would transform our culture is to say that any judge that would go against precedent is an "activist judge" "legislating from the bench", a definition that is 180° from reality. Their oath is to the Constitution, the law, not to precedents of other men. By doing this, they have not just raised precedent to the level of law, but have actually superseded law with precedent. In such a world, the only true law is written as opinions from the bench.

A precedent is only as good as the logic in the original decision. And since the logic of so many court decisions are upside-down from the laws they claim to interpret, there needs to be a lot more questioning of those precedents. We need to return the law to the highest point.

Precedents must be evaluated in the light of the law, not the other way around.