Precedent is a form of tyranny. Those are my words. This article by Randy Kozel of the Washington Post kind of points toward that direction. Unfortunarely, Kozel doesn’t come to the final conclusion that I have, there is no Rule of Law, there is only Rule of Power, and the myth of precedent ony perpetuates the myth of Rule of Law.
A perennial question at the Supreme Court is how today’s justices should deal with yesterday’s decisions. The court has been issuing opinions for centuries, so when new justices take their seats on the bench, they have plenty of material to work with. Then again, it’s all but certain that a newly appointed justice will find some decisions she disagrees with.
That’s a major reason we pay such close attention to Supreme Court nominees. Of course we’re interested in new cases, but we’re also interested in the past: When a justice leaves the court and another arrives, what will remain settled and what will be up for grabs?
One possibility is that each new justice should reach her own conclusions without deferring to what her predecessors have done. That doesn’t mean she should ignore the court’s prior decisions.
To the contrary, she should read those decisions and think carefully about their reasoning. But if she concludes after reflection that her predecessors got it wrong, she should vote to overrule their decision. The most important thing, the argument goes, is getting the law right.
Sometimes being a good judge means getting it wrong.