Reflections on Stare Decisis

Judge Joseph A. Greenaway, Jr.

Reflecting on the principle of stare decisis is both timely and challenging. I experienced an introduction of sorts to one of the milieus where stare decisis is most important—my confirmation hearings. When I had seen or heard the confirmation hearing of other would-be judges or Justices, the experience seemed a little distant and academic. On the other hand, as the person subjected to the questioning, it was indeed quite real. As I had been told, the questions were pointed. Senators had a specific focus— what kind of judge would you be? What was your judicial philosophy? And most important to each of them—what did you think of precedent? What was settled precedent? What precedents were open to or up for discussion?

Most candidates for judicial appointment respond to these types of questions in like fashion—settled precedent is just that, and hypotheticals cannot create a vehicle for discussion since such opining cannot portend how a particular case should be handled or ultimately decided. This manner of jousting is ofttimes frustrating to the questioner, but the Senate chamber is not always conducive to fulsome exchanges on these weighty subjects. The judicial candidate and the questioning senators are often at cross purposes. Outside of the Senate chamber, a more robust exchange is likely possible. In that vein, I present these thoughts about the principle of stare decisis today.