Bench Memos

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Ginsburg’s Disregard for Precedent


Justice Ginsburg’s dissent today in John R. Sand & Gravel Co. v. United States provides further evidence of her disregard for precedent.  I don’t say that as a criticism.  I intend, rather, to place in perspective the hyperbolic view of stare decisis that many on the Left invoke—selectively, to be sure—in an effort to preserve their own favored liberal activist precedents that wrongly concocted supposed constitutional rights.  The simple fact is that no justice embraces in principle anything close to that view.


In today’s ruling, Ginsburg acknowledges that “[c]onsiderations of stare decisis have special force in the area of statutory interpretation” (as opposed to constitutional interpretation).  Even in that area, however, stare decisis is “not an inflexible” command.  Among other things, “we have recognized the propriety of revisiting a [statutory] decision when ‘intervening development of the law’ has ‘removed or weakened [its] conceptual underpinnings,” and “it is altogether appropriate to overrule a [statutory] precedent that has become ‘a positive detriment to coherence and consistency in the law.’”


Whatever “special force” considerations of stare decisis may have in the statutory realm, Ginsburg recognizes that those considerations are often overridden by competing considerations.  The case for preserving erroneous constitutional precedents—especially those that deprive American citizens of their power to enact and revise policies through their legislators—is far, far weaker.

Tags: Whelan


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