Dave Wilton has done a Big List post on the legal phrase stare decisis, for which he quotes the definition in Black’s Law Dictionary:
stare decisis (stahr-ee di-sI-sis or stair-ee) n. (Latin “to stand by things decided”) (18c) The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.
I’ve known the phrase as long as I can remember, and I just assumed it was International Latin, like deo volente or primus inter pares. Imagine my astonishment on discovering it’s purely Anglo-Latin:
Stare decisis is not an idiom found in classical Latin, having been invented in the seventeenth century—not the eighteenth as Black’s incorrectly indicates. It appears in the record of a legal case decided by a British court in 1673:
It being moved again this Term, Hale consented that it should be reversed according as the latter Presidents have been; for he said it was his Rule Stare decisis.
It is used as a verb in another case, this one from 1735. While in Latin stare decisis is grammatically a verb phrase, in English usage it is almost always a noun phrase. This is an exception to the usual trend:
Whatever therefore my first thoughts were, and how much soever the law of executors wants alteration; we think, that as to the two bonds which were forfeited, the defendant must have an allowance for the penalties: and we must stare decisis.
Also somewhat astonishing is the fact that Dave has antedated the OED by over a century, despite the entry having been updated in June 2016; its first citation is:
1800 Rep. Deb. House of Commons Ireland 15–16 Jan. 61 Stare decisis and non quieta movere has been the cant of the cabinet.
non quieta movere
It is nought good a slepyng hound to wake. [Troilus and Criseyde, ca. 1380]
As it happens, there’s a slepyng hound in the other room right now. I’ll try not to wake her.
Don’t think I’ve ever heard the “stair-ee” pronunciation. Maybe a regionalism in some region whose lawyers/judges I have not conversed with?
That case-law precedent is much more important in the idiosyncratic Anglo-American common-law tradition than in Roman law proper or its vulgar modern Code-Napoleon-inflected successor found in most other countries where folks in the legal profession traditionally knew Latin may be one reason that the phrase is not found in International Latin.
Even a murky crisis may be better than a stare decisis.
(With thanks to Hanna Kvanmo: “Selv et magert kompromiss er bedre enn et fait accompli.”)
That case-law precedent is much more important in the idiosyncratic Anglo-American common-law tradition than in Roman law proper
Those foreigners are always trying to do the right thing, instead of the done thing.
Or:
A judicial crisis may look brighter than a stare decisis.
The precedent
A precedential president
or trumpenproletariat?
Such matters vex the monkies
all, the Langur, Tamarin and Rhesus.
Best left alone at feeding time
lest swallow they stare decisis.
Contra David E., those foreigners are *NOT* trying to do the “right” thing in some abstract way. They are rather likewise trying (if you take each set of jurists at face value w/o cynicism) to do the dictated-by-legitimate-authority-outside-themselves thing, but with a different conceptual understanding of what counts as legitimate authority.
Blackstone’s Commentary is interesting in that it explains when a precedent is valid, what we now call super precedent. It includes being beyond living memory and no residual controversy. Dred Scott is a great example of violating both. Plessy only violated one. Not all precedent is valid because it was decided.
Practically all Latin phrases at common law are purely Anglo-Latin. Even mandamus and habeas corpus.
Common law is really uncommon. The whole concept of precedent being legally binding, so that judges legislate from the bench whether they want to or not, is absent from code law.
…and while ne bis in idem really is old and international (though not often mentioned by name), it’s instead called “double jeopardy” in English.
The whole concept of precedent being legally binding, so that judges legislate from the bench whether they want to or not, is absent from code law.
Well, precedent and rulings by higher courts still are important for the interpretation of code law.
Frequent reference to starry divisive in this legal commentary.
It would appear differing judges on SCOTUS get to pick and choose their own interpretations of the things that are to stand or not.
the interpretation of code law
It would appear that the Founders’ constitution (and other code law inherited from UK) failed to mention that women are ‘free men’ — or indeed men at all. Most of the UK code invoked assumes a woman belongs to her husband or father.
@AntC
What you say applies to “underage” women living with a father or legal guardian and married women. Spinsters and widows could exercise more rights, depending on the social climate. In Ireland outside the Pale, there was Brehon law, which allowed, e.g., women to divorce their husband if the husband was not performing his conjugal duties. I think she also kept a dowry or bride portion, which the husband had to keep intact, but maybe this was also the case in England.
Selv et magert kompromiss er bedre enn et fait accompli.
Russian has a different view “Лучше ужасный конец, чем ужас без конца.” A terrible end is better than unending horror (feel free to mix and match te- and ho-). Which is apparently a German wisdom. Eher Ende mit Schrecken als Schrecken ohne Ende.
Lieber ein Ende mit Schrecken als ein Schrecken ohne Ende.
Important in practice, yes, but precedent is never legally binding. In case law it is, except for supreme courts.
The Founders seem to have had a strong aversion to spelling out what they thought should be obvious.* Very often it isn’t obvious. In this case, though… there are still women alive who grew up with man meaning “human being” and never quite got used to being unable to apply it to themselves, or so I read a few years ago.
* Case in point: can the POTUS pardon himself? By all evidence the Founders took good old nemo iudex in causa sua for granted and would have been ashamed to spell it out anywhere, so they didn’t, and early last year there was a huge discussion in US media about this silly question.
I admit that I have a very tenuous grasp of how legal stuff works in the US, but if Congress wasn’t hobbled by partisanship, couldn’t they just create new law to override precedent, at least in areas where the Supreme Court has not spoken on the constitutionality of the matter.
And ultimately, I guess it is within the power of Congress (absent deadlock) to appoint some more SC justices until they get the answers they want?
Well, the deadlock is exactly the point. Before the times of deadlock, it wasn’t usually seen as necessary to pack the court, and now it’s not possible.
Plus, there was a sense of propriety in these matters and the fear that, if one side would pack the court to get the results it wanted, the other side could do the same when they got a majority. I assume many Democrats now think the Republicans anyway will do whatever they want when they get the chance.
Yup, what Hans said.
So now partisanship on at least one side has given the Supreme Court a position to legislate in matters that Congress shouid but cannot decide?
That’s about the size of it. It’s amazing how rapidly the Supreme Court has gone from being probably the most respected institution in the government to just another bunch of greedy villains. O tempora!
In two cases (at least), clearly perjured under oath. Extraordinary. Quis custodiet?
Destruction of the moral authority of respected institutions is, of course, an end in itself for far-right antidemocrats.
The House can impeach Injustices, and a 2/3 majority in the Senate can then remove them.
But neither party has a 2/3 majority, so finding a 2/3 majority for anything is impossible.
Every Republican-nominated Supreme Court justice since Kennedy has committed perjury during their Senate hearings. They have all denied having strong opinions about the abortion issue. It’s become a formalized kabuki-like process, where the nominees are asked about abortion, they give disingenuous answers (generally not saying they agree with it but accepting that it should be considered settled law), and the small number of nominally pro-choice Republican senators announce that they are convinced and vote for the nominees.
The Constitution doesn’t define the number of Supreme Court Justices, so theoretically the President could appoint and Congress could approve more than nine. Franklin Roosevelt tried to do that (“court packing”) because the Supreme Court ruled against some of his New Deal legislation but was opposed by many in his own party and ultimately failed or didn’t need to. I doubt any contemporary president would be able to do that and it would be extremely controversial, to say the least.
@Brett:
Ah. It is easy for a foreigner to misunderstand such traditions. It sounds rather like an Anglican bishop declaring that they believe the Thirty-Nine Articles, or slamming the door of the Commons in the face of Black Rod.
Destruction of the moral authority of respected institutions is, of course, an end in itself for far-right antidemocrats.
I don’t think that’s it, at least not historically. Defence of traditional authority is pretty much the defining element of the political “right wing”. Far-right antidemocrats have been more busy reconstruing the authority of the institutions into something that it never was and use those powers against democracy. The American Supreme Court as primarily an upholder of constitutional originalism is a case in point.
Left-wing anti-democrats would generally rather build new institutions with a new source of authority to be used against democracy.
i honestly don’t see much of any change in the operation of the supreme court, just slightly bigger-than-usual cracks in the kayfabe, which a lot of politicians and commentators are doing mediocre claude rains imitations about (which is itself a constituent part of maintaining the kayfabe).
v. 3.0: Murky devices for now, stare decisis forever.
Defence of traditional authority is pretty much the defining element of the political “right wing”
Yes, I confused the issue by saying “right wing” (though it is self-proclaimed right-wingers who constitute the current threat to our democracies, this is indeed not a necessary conjunction, in either direction.)
What I had in mind, to be more precise, was the deliberate undermining of traditional checks on the power of the executive, either by curtailing their powers directly, or by destroying their moral authority. Professed right-wingers who want to undermine democracy need to do this by indirection and stealth, for the exact reason you adduce: their thing is supposed to be preservation of such institutions against horrid lefties. “Culture wars” are helpful in this in several ways: even if you fail in direct assault on the power of the institution which has the temerity to stand in your way, you will still be able to trash their reputation with your supporters: “lefty lawyers” and “bleeding-heart liberals” have no business opposing their nasty ideas to the People’s Will. Sweep them aside!
The extreme right contingent on the Supreme Court, not being stupid, has preferred (internally) the more subtle time-honoured revolutionary tactic of representing all major innovations as really being a return to the pristine purity of the Original Eden: what you might call the Taliban Manoeuvre. I think that they mostly genuinely believe it themselves.
David E.: by indirection and stealth
v. 3.1 Stealthy devices for now. Stare decisis for ever.
The interesting part here is that moral authority is all the SCOTUS has. When the Austrian government ignores a verdict of the constitution court (as happened once, recently), the constitution authorizes the president to send the army to execute the verdict. (The president’s threat to do that, itself unprecedented, was enough to make the executive branch execute the verdict.) The Big-C Constitution lacks any such provision, perhaps because there’s nobody who could be trusted with this power; the POTUS is after all himself the head of government.
Yes, and that has happened: when the Court told Andrew Jackson he couldn’t evict the Cherokee, he ignored them and did it anyway.
Those foreigners are always trying to do the right thing, instead of the done thing.
So say the English, yes. Americans are about the right thing, though of course they don’t all agree on what that is.
There is a Federal Marshals service that is supposed to carry out the orders of the federal courts, including the supreme court. SCOTUS rarely issues a ruling requiring direct action. Usually, it is a command to a lower court to dispose of a case according to its wishes, but it is the lower court that gives a direct order. And it will be enforced by the authorities.
SCOTUS never told Jackson to not evict the Cherokee, you mean Worcester v. Georgia, but that was about a non-Cherokee missionary living in Cherokee territory in contravention to a Georgia law. Jackson probably could have enforced the decision (to free Worcester) if he wanted, but he wasn’t directed to do so. By the way, this case is very similar (at least superficially) to Castro-Huerta decided just a few days ago. For which our beer-loving justice wrote that “the Worcester-era understanding of Indian country as separate from the State was abandoned later in the 1800s”. The court is originalist mostly when it is convenient.
Maybe a better example of president ignoring a SCOTUS ruling is Lincoln’s continued suspension of habeas corpus in 1861, though he came around to codify it later.
Americans are about the right thing
That’s why we have mandatory minimum sentences.
SCOTUS never told Jackson to not evict the Cherokee, you mean Worcester v. Georgia
Thanks — obviously my memory of these things is fuzzy.
The issue in Castro-Huerta (whether a state government has concurrent jurisdiction to criminally prosecute a non-Indian for an alleged crime committed against an Indian alleged victim in Indian Country) is simply not addressed by the text of the Constitution, so the arguments are about early historical practice etc etc. Chief Justice Marshall (writing four decades later) was coming up with a sort of conceptual schema to fill a gap left in the text which may well have been a plausible/sensible one, but which is no substitute for actual text.
Justice Gorsuch’s scholarly dissent attaches much significance to the fact that the Constitution did *not* carry over a provision from the Articles of Confederation which would have strengthened Oklahoma’s position, but arguing from the significance of silence is always hazardous. I think (although I haven’t read the opinions in full) that the majority accepts the proposition that the considerable federal power over Indian affairs means that Congress certainly could enact a statute stripping the states of any jurisdiction to prosecute in such circumstances,* but they disagree with the dissenters as to whether a particular actually-existing federal statute has done so. I don’t have an informed opinion as to which side has the better of the argument as to the interpretation of that statute.
*Loosely parallel: does a state government have concurrent jurisdiction to prosecute an alleged crime occurring on federal property (in a national park, on a military base, inside a post office …) within the boundaries of the state? The rule there is generally yes, if that’s what Congress wants; no, if that’s not what Congress wants.
That’s why we have mandatory minimum sentences.
Well, some of us think them right and some do not. But it is a matter of Rightness and not of Respectability.
Certiorari is another English-only Latin word.
English Law latin is chock full of these goodies.
Quo warranto is another one.