Thanks for this valuable contribution to current conversations! The later graphs show us something valuable that I hadn't seen elsewhere. The number of laws and institutions affected by each overturned precedent would be a worthy investigation for some grad student who can dedicate the time.
I do wonder about how you characterize stare decisis. You refer to it as a doctrine of keeping bad decisions, as amounting to an admission that something is wrong, but you don't want to fix it. That's not the way I've seen the term applied elsewhere. Stare decisis, as far as I have seen, applies where a court (or the Court) might rule in a variety of ways, without believing that precedent is necessarily wrong, but the court keeps to prior precedent in order to be fair and maintain trust in the law.
For example, the bar for prosecution for incitement to violence is extremely high in the United States. This precedent originally protected the violence of the KKK, but when leftists later came before the Court for inflammatory speech, stare decisis saw to it they were treated the same.
A legal team might rely heavily on stare decisis arguments when they suspect the judges before them do not agree with a prior ruling and will not buy their other arguments, but I'm not aware that invocation of the principle necessarily indicates a belief that the prior decision was in error. Not unless a Court believes that any decision other than what they would make with no precedent is bad, at which point we're discussing sheer arrogance more than legal reasoning.
How we read these graphs depends on how we contextualize history. The Constitution was written by wealthy White men in order to support their own long-term interests, and the early court made sure it did so. The lack of overturned precedents in the early court isn't just a function of the country being young; the range of judicial philosophies appointed would also have consistency within the range of interests they were designed to defend.
By the mid-20th century, we finally had enough people who were not White men in the electorate to filter into the dispositions and hermeneutics of the Supreme Court, thus resulting in readings that favored the American populace in general, at least sometimes--which necessarily means overturning precedents of a Court that did not. With the Barrett Court, thanks to a partisan re-alignment that enables a Senate majority to reflect the interests of well-off White men even with a minority of votes, we have a Court poised to return power to the race, class, and gender of people whom the framers intended. Out with the old overturnings, in with the new!
I have no doubt that you read this history differently.
Incidentally, I finally migrated over to Substack once you updated your old blog after some time. I'll probably be commenting on older posts now and again.
Thanks for this valuable contribution to current conversations! The later graphs show us something valuable that I hadn't seen elsewhere. The number of laws and institutions affected by each overturned precedent would be a worthy investigation for some grad student who can dedicate the time.
I do wonder about how you characterize stare decisis. You refer to it as a doctrine of keeping bad decisions, as amounting to an admission that something is wrong, but you don't want to fix it. That's not the way I've seen the term applied elsewhere. Stare decisis, as far as I have seen, applies where a court (or the Court) might rule in a variety of ways, without believing that precedent is necessarily wrong, but the court keeps to prior precedent in order to be fair and maintain trust in the law.
For example, the bar for prosecution for incitement to violence is extremely high in the United States. This precedent originally protected the violence of the KKK, but when leftists later came before the Court for inflammatory speech, stare decisis saw to it they were treated the same.
A legal team might rely heavily on stare decisis arguments when they suspect the judges before them do not agree with a prior ruling and will not buy their other arguments, but I'm not aware that invocation of the principle necessarily indicates a belief that the prior decision was in error. Not unless a Court believes that any decision other than what they would make with no precedent is bad, at which point we're discussing sheer arrogance more than legal reasoning.
How we read these graphs depends on how we contextualize history. The Constitution was written by wealthy White men in order to support their own long-term interests, and the early court made sure it did so. The lack of overturned precedents in the early court isn't just a function of the country being young; the range of judicial philosophies appointed would also have consistency within the range of interests they were designed to defend.
By the mid-20th century, we finally had enough people who were not White men in the electorate to filter into the dispositions and hermeneutics of the Supreme Court, thus resulting in readings that favored the American populace in general, at least sometimes--which necessarily means overturning precedents of a Court that did not. With the Barrett Court, thanks to a partisan re-alignment that enables a Senate majority to reflect the interests of well-off White men even with a minority of votes, we have a Court poised to return power to the race, class, and gender of people whom the framers intended. Out with the old overturnings, in with the new!
I have no doubt that you read this history differently.
Incidentally, I finally migrated over to Substack once you updated your old blog after some time. I'll probably be commenting on older posts now and again.