Legal Precedent

Duke of Norfolk: Oh, confound all of this! I'm not a scholar. I don't know if the marriage was lawful or not. But dammit, Thomas, look at these names. Why can't you do as I did and come with us, for fellowship?
Sir Thomas More: And when we die, and you are sent to heaven for doing your conscience and I am sent to hell for not doing mine, will you come with me, for fellowship?
--A Man for All Seasons

I have read last Thursday's Supreme Court decision from cover to cover and some sections several times. It has been difficult to set down because of this case's importance. The opinions put forth by these judges have extraordinary implications for individual liberty.

Moreover, it seems to me that the validity of judicial decisions should not be estimated by the extent to which appointed-for-life judges side with each other. As FDR demonstrated for all to see, it is quite possible to pack a court with political interest. A law is not a just one by edict, but by the extent to which it is consistent with the rights of man.

The validity of judicial rulings, therefore, is best evaluated by digging into the opinions themselves. In their opinions, justices  must bare their thought processes for all to read. Although they cannot directly alter the composition of the bench, the citizenry can surely evaluate the strength of legal arguments expressed in the opinions to assess the extent of jurisprudence or jurisimprudence evident in the minds of the people writing those opinions.

Were more people to do this, they might conclude that a practice frequently employed in court opinions, that of citing rulings and opinions of past cases to justify opinions on current cases, holds less legitimacy than judges seem to attribute.

In chewing thru the legal precedents cited in the healthcare ruling, I am reminded of the journalistic practice of quoting sources. Find sources that you agree with, and cherry pick quotes that fit the context that you are building. Voila, a prime source of media bias...

Judges can employ similar methods when writing opinions.

If a judge cites a precedent opinion from a former judge that was commited to strong central government like Joseph Story, or from a judge committed to majority rule like Oliver Wendell Holmes, or a from a majority of judges during the period when FDR packed the court, then just how much 'true' legal information can one glean from these precedents? Just because it was noted or ordered so in the past does not make it right.

Instead, the quality of a judicial opinion must be grounded in the judge's thought process itself. Justifying current law because 'we did it that way in the past' is a poor substitute for a well reasoned mind. A well reasoned mind surely recognizes that courts throughout history have been rife with interest that taints opinions.

Yes, citing precedents, like citing sources, can augment an argument. But grounding a legal decision in an interested judicial past past seems like Pilate washing his hands, or the blind leading the blind.