Wednesday, July 01, 2026
Stare decisis is foundational to American jurisprudence. It is the legal system's promise that like things will be treated alike, and that outcomes will be predictable based on the law and nothing else. There is no basis, e.g. to revisit In re Humphrey's Executor, a carefully reasoned decision which examined what Congress did, why it was done that way, and what the limits of Executive power consisted of. The entire operation of the administrative state was based on Humphrey's Executor, and rejecting in now doesn't even rise to the level of bad faith. It is judicial nihilism.
Likewise Wong Kim Ark. Setting aside the plain language of the 14th Amendment (although plain language is a first principle in Constitutional and statutory construction) there is no reason that birthright citizenship needed to be revisited, but the policy beliefs of three and a half Supreme Court Justices brought us to the brink.
I have had my share of disappointing outcomes in my career as a litigator, but those were not the result of a judge making up a legal principle out of whole cloth. This Court is doing exactly that, and it sickens me
Of
course law is politics at the Supreme Court level. It can’t not be.
There will always be an extent when many of the cases the Court picks
are picked because a fistful of Justices have a policy direction in
mind. The expectation is supposed to be that there will be an opinion
explaining why the outcome is consistent with prior cases, or how it is
distinguished from them. The Justice writing is supposed to show their
work. This Court just hand waves that away, with a, “Nah, those guys was
wrong,” and a shrug.
