There Are Almost No One-Offs in the Legal System
Whatever rule you advocate for has to apply to other cases
Yesterday’s post on the homicide theory being used to prosecute the parents of the school shooter reminds me of a point that so many people get wrong about the legal system: there is almost no such thing as the legal rule you can only use for your own benefit.
Our system is a common law legal system, which means it is based on case precedents. Courts don’t just decide the narrow result of each specific case: they announce what rules they applied to reach that result, which can then be cited in other cases. Obviously, precedent is not slavishly obeyed- this is why we got Brown v. Board of Education and why conservatives are up at the Supreme Court trying to overturn Roe v. Wade. But it’s obeyed more than outsiders might think: lower courts that disobey precedent get smacked down by the Courts of Appeals and the Supreme Court, and even at the Supreme Court level, precedents are rarely overturned and the Court tries to make its later decisions consistent with its earlier ones.
And one of the implications of this is that whenever any litigant seeks a change in the law, or even an extension of an existing principle, that litigant’s lawyers get peppered with questions about whether that change in the law will result in an unacceptable result in other, hypothetical cases. If you listen to U.S. Supreme Court arguments, this is probably 80% or more of what they discuss.
And this is why you have to be very careful about changing the law just because you want a result in a particular case. Yesterday’s piece was just an example of this: you don’t want to create a rule of parental liability that can generally be used to imprison parents for their offspring’s awful decisions. But this issue comes up all the time. One of my favorite examples of it is on the right: the argument made by a few extremists that the Constitution literally prohibits abortion. This argument gets a lot of attention because pro-choice liberals love to cite it: it allows them to claim (falsely) that conservatives on the Supreme Court won’t even allow liberal states like California and New York to permit abortion.
But the reason why no conservative court is ever going to hold that the Constitution prohibits abortion is because a legal rule that imposes on the government a duty to protect life is not going to be limited to abortion: it’s going to apply to all sorts of other policy choices, from policing choices to school funding to failure to get lead out of the water in Flint, and is basically going to end up constitutionally requiring activist government, which conservatives would hate. Indeed, John Finnis, the far-right law professor who is most associated with the “Constitution prohibits abortion” argument, is basically viewed as an idiot by large parts of the conservative legal movement, because they understand how the courts actually work and Finnis is too obsessed with his legal fantasy to worry about that.
At this point, someone will inevitably bring up Bush v. Gore. And it is absolutely true: Bush v. Gore is the most famous constitutional one-off in history, even explicitly containing a footnote saying that the rule it announced was for that case only. But Bush is quite literally the exception that proves the rule. First, that footnote got enormous condemnation, even from people in the legal community who supported Bush and especially from Gore supporters. Second, despite that footnote, Bush has been cited and applied in some lower court cases. And third, and most importantly, Bush was a presidential election case where the winning margin was less than 600 votes: essentially, a scenario that happens once every 100 years or more. You can announce a “one time only” legal rule in that situation; you can’t when whatever you announce is going to be applied to numerous other cases.
But unless you are arguing the legal rules that apply to a super-close presidential election, whatever you advocate has to work not only in the case you care about, but in other cases as well. And that provides a significant check on legal analysis through Twitter Hot Takes, because that medium focuses like a laser beam on the outrage of the day and nobody thinks about tomorrow and the damage we might do.
So, basically what you're saying is: enough judges are honest and try to actually follow the law, that if a dishonest and corrupt judge (let's call him "Antonin Scalia", hypothetically) makes up a new "rule" in order to give the case to the party who he wants to win...
...OTHER judges are going to apply the rule, whether he wanted them to or not. If you're a crooked judge, you can't rely on ALL the judges being crooked... they might take you at your word. Like they did with the rule Scalia made up in Bush v. Gore.
OK, that makes sense. But are the current political hacks sitting at the supreme court smart enough to understand that?
They seem to be gunning to overturn the Supreme Court ruling in Massachusetts v. EPA, and that's not even a question of precedent -- that's outright stare decisis, it's a decided case and it looks like they're trying to use a moot case to overturn the outcome in that specific case. We'll see if they do it. If they throw stare decisis out the window -- not just precedent, but stare decisis proper -- they're opening up the floodgates. Then any judge can overturn anything!
In earlier corrupt rulings, various supreme courts seem to have abandoned the principle "there is no right without a remedy" in favor of "you may have a right on paper but we will give you no remedy", which has arguably already ripped the heart out of the federal legal system (at least when it comes to the 4th and 14th amendments).
The current "court" backed off from taking a moot case in the NRA case but they were about to; and they're taking a moot case in their attempt to overturn Massachusetts v. EPA. That is not just an abolishment of a legal principle, it's expressly against the explicit text of the Constitution! What consequences will come from that?
The recent nonsense rulings in the vaccine mandate cases have been condemned by scholars because there is no cognizable legal principle other than "how the judges feel about it". What effect is this going to have?
Do they simply think they can take the cases they care about for political posturing and hand them to their preferred winners (ruling on who's in the court, not the nature of the case) -- and do they just not care what sort of wreckage that will create in the lower courts?
There's a reason Sotomayor has been condemning the "majority" for ignoring precedent, facts, the text of the law, Congressional intent, logic, evidence, etc. in dissent after dissent. Even Roberts has been coming down on them for it. There were something like four of these utterly ridiculous lawless "rulings" in the last few months alone.
There are articles from law professors saying that they see no cognizable principles and that this appears to be pure results-oriented judginating.
And the bigger question: what do we do when the so-called supreme court is this evidently corrupt? It's not about the outcomes in individual cases at this point; this is unjudicial, unethical, *bad* behavior. "Judges... serve on good behavior", the Constitution says...
I don't expect a response; it's just something to think about. :-(