"Stare Decisis"-- Past Court Abuse Needs Remedy

Today I was reading a piece discussing who the President might choose for nomination to replace Sandra Day O'Connor as Associate Justice to the Supreme Court.

In the article, the term "Super stare decisis" was used in describing a term used by one of the perspective nominees is rendering an opinion on a case he was involved with as a judge.

We had stare decisis come up numerous times during Chief Justice Roberts recent confirmation hears, and now the term "super" has been applied in this article I read. I decided to look the term Stare Decisis up. Of course I know what the Latin words stand for--but I wanted a definition as to how it is applied in court decisions.

Here is what I found:
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STARE DECISIS - Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.

To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.

An appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989).

Although the doctrine of stare decisis does not prevent reexamining and, if need be, overruling prior decisions, "It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law.
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This brings up in my mind a "Alice In Wonderland" type of question--where everything that appears to be so--is in fact--not!

What I mean is--If the court eventually ends up with a majority of Justices that firmly and unwaveringly approach every case from a "super stare decisis" mentality--then how are the past decisions we must live with and were made by an activist Supreme Court ever going to be nullified?

Isn't that the reason we now need a srictly constructionist set of Justices? To form a Court more in line with the original intent of our founding fathers. An intent that meant for the Court to concern itself only with matters of law and not legislate their own prejudices into "defacto" law?

This brings me to another question. Do we now need an "affirmative action" approach in the Courts with respect to stare decisis?

Affirmative action has been ruled as just in the Michigan Law school entrance requirements-- as a solution to years of abuse and segregation within our society. Basically what it amounts to is setting aside equal rights and allowing "super admission rights" to the class of students who in the courts decision--were denied an equal footing in the community-- and therefore need special attention to right the wrong. They need their class to be treated unequally when competing with the white population-- who over time have enjoyed more favorable educatitional and resource advantage. I won't get into this can of worms--but I believe the principal needs applied now to other areas in our society.

Unborn babies and Christianity has been the victims of unjust treatment due to judicial activism.

Stare decicis would continue a biased treatment resulting in unjust cultural implications and life and death issues for these victims.These classes of citizens.

Will the "new court" made up of Justices that are not activists, recognize the past abuse, and apply remedies that revoke stare decisis-- in cases involving religion and the rights of the unborn? Will the Supreme Court take on new cases that involve the same issue which resulted in Roe vs Wade, as a vehicle to right a court induced wrong? Or will the Supreme Court ignore these past cases of Judicial activism?

Yodi thinks the Supreme Court should fix what it broke.