Trump's Supreme Court Pick: Religious Freedom Defender Neil Gorsuch

This is the biggest reason why some of us held our nose and voted for him.

It’s worth noting that the bane of the court today is the doctrine of stare decisis, or “let the decision stand”. In other words, it takes a LOT for the court to reverse bad precedent. This has parallels in the Talmuds of Judiasm—essentially commmentary on the Torah—as well as in the Magisterium of Catholicism. All eight Justices currently are either Jewish or Catholic—at least nominally.

So while Gorsuch’s Episcopal faith is not perfect—especially being a member of a church in Boulder no less—a hint of Bible-believing Protestantism could be a welcome breath of fresh air for the Court.

Side note 1: I used to live in Boulder, but can’t speak to the Episcopal churches there….in the culture they were more or less invisible, and I can’t say what that means about their theology. Gorsuch looks good, though.

Side note 2: the example of Scalia does show that Catholics can be reasonably responsible in their handling of precedent, of course.

St. John’s Episcopal, Boulder:

http://www.stjohnsboulder.org/index.php

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[Here’s one source: http://religionnews.com/2017/01/31/5-faith-facts-on-the-presumed-supreme-court-nominees/]

I wouldn’t call stare decisis the “bane of the court”. Precedent has value in helping to maintain consistency and predictability, to some extent. Precedent helps people know that the law won’t change unless a good reason exists for that law to change. Bad decisions make bad precedent, good decisions make good precedent. The problem is not the principle of stare decisis. The problem is bad law.

Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an “inexorable command.” On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously. https://www.law.cornell.edu/wex/stare_decisis

Well researched source…

Our interest lies with understanding the quintessential institutional rule in the American judiciary—stare decisis. This informal norm directs judges to follow legal rulings from prior cases that are factually similar to ones being decided.1 It is the defining feature of American courts, and lawyers, judges, and scholars recognize it represents the most critical piece of American judicial infrastructure (Knight and Epstein 1996a; Powell 1990; Schauer 1987). Additionally, the transfer of the common law framework from England to the United States, and the role stare decisis plays within it, is the “central theme of early American legal history” (Flaherty 1969, 5). http://lawexplores.com/the-origin-and-development-of-stare-decisis-at-t…

I don’t think it has much to do with any particular religion. And though I’m not for giving it excessive weight, it’s indispensable to judicial stability, ceteris parabus.

I find it fascinating that today’s legal interpretation centers on “the text” - What does the law say?

Very similar to good Biblical interpretation - What does the text say?

That’s why I like Bibleworks’ theme/slogan: “Focus On The Text”.

Also: Look at this Supreme Court blogsite for info about the Court: scotusblog.com

Agreed that it depends all on good vs. bad decisions; the trick is that a strong view of stare decisis will tend to result in retaining bad decisions more often. It’s a matter of mindset, philosophy, and even perhaps personality.

To use the example Aaron mentions, William Rehnquist was a consistent opponent of the over-application of the doctrine, and….while he doesn’t appear to have been a strongly pious man, he was a Lutheran who would have had a significant application of Sola Scriptura. The hypothesis I offer is that those who come from a strongly traditionalistic religious background like Catholicism will tend to honor tradition and precedent more than those who do not. Hence, a Catholic or Jew (even nonobservant) will simply have the mental tendency to honor precedent more than a Protestant will, all else the same.

In a world where an aberrant doctrine—say the “penumbra of privacy” that animated Griswold v. Conn before giving us Roe v. Wade, Romer v. Evans, and Lawrence v. Texas—it can be really important that someone is philosophically and temperamentally prepared to stand against bad law and overrule precedent. Rehnquist, for example, did oppose the final three decisions.