Thursday, October 27, 2016

Being a Judge Means Never Having to Say You are Sorry..

Years ago there was movie called Love Story. It was a chick flick on steroids that yielded the mantra that has come down to us, "love means never having  to say you're sorry." Donald Trump has adopted this as a guiding principle in his life and he has been soundly criticised for it. However, Trump thinking that he has no need to say he is sorry will not hurt us.

However, there is an entire branch of government that has this as its motto... and it can and does hurt us. This is the mantra that "being a judge means never having to say you are sorry (or wrong)". This mantra has been enshrined in an ancient legal concept called "stare decisis" ( which literally means "to stand by decisions". The practical effect is that courts do not spend a lot of time looking at a case if they feel that stare decisis applies. For example, the "most abominable decision" ever reached by the Supreme Court was the Dred Scott case that held that blacks could not be citizens. The court never overtuned this  awful decision, rather it was left to the implementation of the 13th and 14th amendments to correct the evils of this case.

While stare decisis is a good thing in principle, the major goal of the law is not "the law", rather it is "justice". The entire legal profession needs to grasp this concept again. When stare decisis precludes justice, it is the responsibility of the judiciary to say "I'm sorry" and make things right. If they don't, then constitutional amendment may be in order.

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