Standing on stare decisis

Samuel Johnson famously said "patriotism is the last refuge of scoundrels," well it's ironic that stare decisis--if it's all your standing on, may qualify as the last refuge of judicial activists.

Retiring TN Supreme Court Chief Justice William M. Barker has stated in a Nashville City Paper interview that he thinks Tennessee's most recent way of picking judges is best. From the article:

In an interview with The City Paper, Barker said that the state’s way to pick Supreme Court and intermediate appellate judges — called the Tennessee Plan — is the “best of all methods” that states have found."

That's his policy preference and that's just fine. (Incidentally, all the other states in the U.S. which replaced constitutionally-required elections with "merit selection" went to the effort of changing their Constitutions--something Tennessee voters rejected in 1977).

But Barker offers a legal basis for his policy preference by stating that two prior TN Supreme Court opinions have found the so-called "Tennessee Plan" to be "Constitutional" . . . Barker's basis is a legal principle called stare decisis and--in this case, I'd say it is the jurisprudential equivalent of vapid patriotism. (I'll save for another post whether those prior decisions even fairly qualify as "stare decisis").

Stare decisis (pronounced "starry deSEYEsus")literally means "to stand by things decided," and it expresses the principle that prior court decisions must be recognized as precedent. Supposedly, stare decisis is essential for lending predictability to the law.

One thing that really serves to make the law "predictable" is to adhere to what the plain text of the law--the Constitution in this case, says. The text of our state Constitution has painstakingly been arrived at by Constitutional Convention or by the arduous process (in Tennessee) of Constitutional amendment. That's "law" that deserves some deference, I'd say.

Indeed, Barker cites Brown v. Board of Education in supporting the idea of insulating judges from accountability for their rulings. That's a fair argument in favor of Barker's preferred way of picking judges. But it's a good thing that the judges in Brown v. Board of Education didn't hide behind stare decisis in reaching their decision, isn't it?




More on this debate at tennplandebate.org




also posted at tennesseefree.com