by Matt Barr

Stare indecisis

JurisPundit notes that the principle applied in Roper is essentially unchanged from the one applied in Stanford, which Roper purportedly overruled.

In determining whether the juvenile death penalty is a "cruel and unusual punishment" the Court used the exact method it used fifteen years ago in Stanford v. Kentucky. The logic is virtually unchanged. The difference? They reached a different conclusion this time around.

Did they reach a different conclusion based on shaky evidence? Perhaps. Did they overturn Stanford with the reckless disregard for stare decisis? Absolutely not. Stanford put forth a straightforward analysis. When defining "cruel and unusual" the Court must look toward the conceptions of decency of the society as a whole. In Stanford, the Court recognized that the standard of decency will evolve, and after fifteen years, the Court found that it had. It was a simple application of the law.

This is true, as far as it goes. I would argue though that once you hitch your wagon to that horse, you're no longer driving -- the horse is. The Court could decide tomorrow that sexual orientation is a suspect class discrimination against which must withstand strict scrutiny. Against charges of playing fast and loose with stare decisis it could truthfully say that strict scrutiny is reserved for "classifications based on race or national origin and classifications affecting fundamental rights," and laws impacting sexual orientation, now that we've had time to think it over, affect fundamental rights. Then, the test is the same -- the Court hasn't changed, what's considered "fundamental" has.

Don't misunderstand me: As far as I'm concerned, sexual orientation is a matter the state shouldn't stick its nose in. The point is that the Court has been clear that discrimination based on sexual orientation does not need to satisfy strict scrutiny, but if all stare decisis requires is the application of a test, and you can define the elements of the test however you'd like, there's no stare decisis at all.

Stare decisis is meant to ground our relationships with the state (including private relationships we ask the state to define or enforce) in certainty. Plaintiff P, who is unlike me in only irrelevant ways, had outcome X in court ten years ago; so I would have outcome X under similar circumstances; so Person D, who I could choose to make a defendant, has to deal with me in certain ways clearly defined to both of us, or else we both know I'll take him to court and prevail. The "stare decisis" practiced by the Roper Court is stare decisis without the actual certainty it will act the same way with similarly situated parties in the future.

Having noticed this, too, is Will Baude at Crescat Sententia:

[Roper may mean] that lower courts are now free to overrule the Supreme Court if they think that, for example, there is a national consensus agains the death penalty since the last time the Court considered the question. But if that's so, then why not the other way around? If the standards are the evolving standards of decency, presumably the standards can evolve in the other direction -- consensuses that once existed can later fade. So, if, in ten years, the Texas Supreme Court decides that things have changed since Roper, it can presumably reinstate the execution of juvenile murderers.

As delicious as that would be, it would require not just an appellate or state supreme court willing to try and change the world, but a prosecutor willing to defy the law and ask for the death penalty on a defendant who is ineligible under Roper, and a trial judge to accede to that request. Unfortunately, this does appear to be "a victory cemented in stone," quoting Will quoting Anthony Rickey.

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