Binding precedent is unconstitutional

It should be understood that binding precedent is not authorized orrequired by the Constitution, and indeed may be inconsistent with itbeing the supreme law. It is entirely prudential, for convenience of thecourt, and “public policy”, not law.

From Wapedia :

3. 1. 3. Formulation of federal precedent 

Unlike the states, there is no plenary reception statute at the federallevel that continued the common law and thereby granted federal courtsthe power to formulate legal precedent like their English predecessors.Federal courts are solely creatures of the federal Constitution and thefederal Judiciary Acts. [37] However, it is universally accepted thatthe Founding Fathers of the United States, by vesting “judicial power”into the Supreme Court and the inferior federal courts in Article Threeof the United States Constitution, thereby vested in them the impliedjudicial power of common law courts to formulate persuasive precedent;this power was widely accepted, understood, and recognized by theFounding Fathers at the time the Constitution was ratified. [38] Severallegal scholars have argued that the federal judicial power to decide”cases or controversies” necessarily includes the power to decide theprecedential effect of those cases and controversies. [39]

The difficult question is whether federal judicial power extends toformulating binding precedent through strict adherence to the rule ofstare decisis. This is where the act of deciding a case becomes alimited form of lawmaking in itself, in that an appellate court’srulings will thereby bind itself and lower courts in future cases (andtherefore also impliedly binds all persons within the court’sjurisdiction). Prior to a major change to federal court rules in 2007,about one-fifth of federal appellate cases were published and therebybecame binding precedents, while the rest were unpublished and boundonly the parties to each case. [38]

As Judge Alex Kozinski has explained, binding precedent as we know ittoday simply did not exist at the time the Constitution was framed. [38]Judicial decisions were not consistently, accurately, and faithfullyreported on both sides of the Atlantic (reporters often simply rewroteor failed to publish decisions which they disliked), and the UnitedKingdom lacked a coherent court hierarchy prior to the end of the 19thcentury. [38] Furthermore, English judges in the eighteenth centurysubscribed to now-obsolete natural law theories of law, by which law wasbelieved to have an existence independent of what individual judgessaid. They saw themselves as merely declaring the law which had alwaystheoretically existed, not making it. [38] Therefore, a judge couldreject another judge’s opinion as simply an incorrect statement of thelaw, like how scientists regularly reject each other’s conclusions asincorrect statements of the laws of science. [38]

The contemporary rule of binding precedent became possible in the U.S.in the nineteenth century only after the creation of a clear courthierarchy (under the Judiciary Acts), and the beginning of regularverbatim publication of U.S. appellate decisions by West Publishing.[38] It gradually developed case-by-case as an extension of thejudiciary’s public policy of effective judicial administration (that is,in order to efficiently exercise the judicial power). [38] It isgenerally justified today as a matter of public policy, first, as amatter of fundamental fairness, and second, that in the absence of caselaw, it would be completely unworkable for every minor issue in everylegal case to be briefed, argued, and decided from first principles(such as relevant statutes, constitutional provisions, and underlyingpublic policies), which in turn would create hopeless inefficiency,instability, and unpredictability, and thereby undermine the rule oflaw. [40] [41]

---

[38] Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoffv. United States, 223 F.3d 898, vacated as moot on reh’g en banc, 235F.3d 1054 (8th Cir. 2000).

[39] Michael J. Gerhardt, The Power of Precedent (New York: OxfordUniversity Press, 2008), 59.

[40] Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle andPolitics in Constitutional Law (New York: Oxford University Press,2008), 70-71.

[41] Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595-602 (1987).

---

Also see How stare decisis Subverts the Law, especially thelaw review articles linked from it.

Read more at Constitution

Source: