Reading some of the recap of Sotomayor’s hearing on Bench Memos, I get the impression that she is very big on stare decisis, i.e. the attempt to respect and not contradict previous rulings by the same court or higher courts of the same jurisdiction. (As I am no lawyer, I hope I have summarized this concept correctly.) What worries me about this testimony is that the Supreme Court is not as subject to stare decisis as lower courts. Lower courts are bound by previous rulings of higher courts but there is no higher court than the Supreme Court. It is only bound by its own previous rulings and in some cases not even then.

There are at least two prominent instances of the Supreme Court disregarding stare decisis. In 1896 the court ruled in Plessy v. Ferguson that separate but equal education was constitutional. In 1954 the decision was overturned in Brown v. Board of Education. More recently, in 1986 the Court ruled that states could pass laws against homosexual sex in Bowers v. Hardwick, but this was overturned in Lawrence v. Texas in 2003. Whatever you think of any of these decisions, there is definitely precedence for overturning precedence on the Supreme Court. Whether I agree with any of these rulings, I feel there should be room for overturning bad precedence although it should only be done with much fear and trembling. It is not as if the Supreme Court, even as a group, is infallible. As an originalist, my standard for overturning would the Constitution and the original intent of its writers.

I am curious. What does Sotomayor think of those four decisions? How binding should stare decisis be for the Supreme Court? Under what circumstances should precedence be overturned? What makes settled law settled? It is certainly good that she appreciated stare decisis as a lower court judge, but her answers so far have seemed used it as a cover to hide her fundamental reasoning. Answers to these questions should shine more light on her judicial philosophy.