Magazine July 30, 2012, Issue

By the Roots

Chief Justice John Roberts during a moot-court competition in Washington, D.C., February 9, 2006 (Jim Young/Reuters)
The Supreme Court should overturn unsound precedents

Precedent is the glue that holds the American legal system together, giving both adaptability and predictability to the decisions of our courts. When a precedent is good, it’s great, but when it’s bad, its effects can be terrible. The real story of the Obamacare decision is that it was driven by flawed precedents that should have been modified long ago. To make matters worse, the Court’s decision created a new precedent that could do lasting damage to the Constitution if it is not reversed.

Those flawed precedents have a couple of things in common. First, they replace binary, categorical, yes/no decision

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