Did You Ever Wonder?

What is a Judicial Precedent?

By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo

This article was started on June 25, 2022, in advance of the submission requirement of New Matter deadline of July 1, 2022. My decision to write about this topic is based on two recent decisions by the United States Supreme Court [(SCOTUS) hereinafter (USSC)] cited as slip opinions, DOBBS, STATE HEALTH OFFICER OF THE

MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON

WOMEN'S HEALTH ORGANIZATION ET AL., CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, No. 19-1392. _____ U.S. _____, 2022, Argued December 1, 2021 - Decided June 24, 2022, and NEW

YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE,

ET AL., CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, No. 20-843. _____ U.S. _____, Argued November 3, 2021 - Decided June 23, 2022. One of the main themes of the Dobbs case concerns precedence as it relates to the (USSC) decision in Roe v. Wade, 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 and Planned Parenthood v. Casey, 505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992 U.S. LEXIS 4751; 60 U.S.L.W. 4795. The decision in the New York case also involves judicial precedence as it relates to the history of a New York state law. [N. Y. Penal Law Ann. §400.00(2)(f)].

The legal definition of a judicial precedent, also known by the latin term stare decisis, is common knowledge to every law school graduate. It provides a comforting signal to the graduate that she/he need not worry a lot about massive changes in the law that our courts look at on almost a daily basis.

Even though the judicial system of the United States prohibits the courts from “making law,” there is a common expression used that when a court decides a case the decision becomes “case law.” There is typically some confusion by people who need an attorney for a legal purpose to have their understanding about what the actual “law” is in their case.

For laymen reading this article, the ideas expressed are more than just words or theories. Your lawyer that pursues representation of your matter relies heavily on the courts following this judicial precedent to obtain a good result in your case. If a judicial precedent is reversed, overruled or overturned, it may result in you losing your case or making it worse. In some cases, it may even result in you winning your

case and making it better. It is estimated that the (USSC) has reversed itself about (230) times. (See below for partial list.)

So I start with some definitions from different sources. The first comes from Black’s Law Dictionary.

“Precedent. An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law.

It means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases, but matters which merely lurk in the record and are not directly advanced or expressly decided are not precedents. Empire Square Realty Co. v. Chase Nat. Bank of City of New York, 43 N.Y.S.2d 470, 473, 181 Misc. 752;

Kvos, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct. 197, 81 L.Ed. 183.” (Black’s Law Dictionary, Revised Fourth

Edition, p. 1348, 1968).

Obviously the above is an old definition with old cases listed. Lawyers doing research would then search those old cases to see what they contain. There are several databases that are used by law firms. I am using Lexis for this article.

The first thing noticed is that there are more complete citations to the case, i.e. Empire Square Realty Co. v. Chase Nat’l Bank, 181 Misc. 752; 43 N.Y.S.2d 470; 1943 N.Y. Misc. LEXIS 2250, 1943 and KVOS, Inc. v. Associated Press, 299 U.S. 269; 57 S. Ct. 197; 81 L. Ed. 183; 1936 U.S. LEXIS 995. We would also check the subsequent history of each case using the same database for all the cases that have even cited the above or done something to the decision of the case by state and federal courts. At the date of drafting this article, the Empire case only had (8) cases. However, in the Kvos case there were (555). Ten of the Kvos subsequent cases were from the (USSC).

Sound easy? In some cases it is, in most cases it is not. Let me now introduce you to one of my other sources of information, the Wikipedia website, for the definition of precedent.

“A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. Commonlaw legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis (a Latin phrase with the literal meaning of “to stand in the-things-thathave-been-decided”). Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and

subordinate legislation (that is, regulations promulgated by executive branch agencies, in the form of delegated legislation) in UK parlance – or regulatory law (in US parlance). Case law, in common-law jurisdictions, is the set of decisions of adjudicatory tribunals or other rulings that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law, which is guided by previous rulings, for example, previous decisions of a government agency.

Essential to the development of case law is the publication and indexing of decisions for use by lawyers, courts, and the general public, in the form of law reports. While all decisions are precedent (though at varying levels of authority as discussed throughout this article), some become “leading cases” or “landmark decisions” that are cited especially often.

Generally speaking, a legal precedent is said to be: • applied (if precedent is binding) / adopted (if precedent is persuasive), if the principles underpinning the previous decision are accordingly used to evaluate the issues of the subsequent case; • distinguished, if the principles underpinning the previous decision are found specific to, or premised upon, certain factual scenarios, and not applied to the subsequent case because of the absence or material difference in the latter's facts; • modified, if the same court on determination of the same case on order from a higher court modified one or more parts of the previous decision; or • overruled, if the same or higher courts on appeal or determination of subsequent cases found the principles underpinning the previous decision erroneous in law or overtaken by new legislation or developments.

In contrast, civil law systems adhere to a legal positivism, where past decisions do not usually have the precedential, binding effect that they have in common law decisionmaking; the judicial review practiced by constitutional courts can be regarded as a notable exception.” (Wikipedia on “precedent” as of June 25, 2022, https://en.wikipedia.org/wiki/Precedent).

The puzzle picture of “precedent” becomes more complete as one learns about how the court system works when it uses this rule of decision making. Think about it in terms of the judicial system in the Commonwealth of Pennsylvania (PACW). Keep in mind that not all states are Commonwealths and not all states have the exact same judicial system as Pennsylvania. There are only four states that are Commonwealths: Kentucky, Massachusetts, Virginia, and Pennsylvania. Sorry, but it just got complicated again.

Continued from page 9

The jurisdiction of a court controls the entry level for a case, whether it is civil or criminal, going to a court. From the lowest level courts a case progresses to each level of the system until it reaches the State Supreme Court. If the decision in the (PSSC) is appealed it goes to the Federal Court System and, in some cases, can be heard by the (USSC).

At each level in the system there can be a decision that is absolutely in keeping with prior precedent of the law of the case. But the appellate court may interpret the facts of the case differently than the lower court. In some instances, the lower appellate courts can decide a case that is totally contrary to a (USSC) decision. But the appellant must take that decision to the next level in order to reverse or overrule the bad decision.

So what happened in the two decisions the (USSC) just made? The decision in the New York case is a little easier to explain. There had only been one case concerning the reversal of the New York law that went as high as the (USSC). The (USSC) did not stop the state of New York from requiring its residents to obtain a permit to carry a concealed weapon. The (USSC) merely stopped the state of New York from having a subjective requirement of the need to have the permit that is not required by the Second Amendment to the U.S. Constitution. New York’s law first went into effect on September 1, 1967, (55) years ago. During that time it had been changed or modified multiple times and any challenges to the law were decided in favor of the state. Why wasn’t the law challenged before this? It was. But the appellant(s) lost and did not appeal to the (USSC).

The slip opinion for the New York case is (135) pages long. (See https://www.supremecourt.gov/opinions/ slipopinion/20. Click on “Opinions of the Court.” Scroll down to case #54 for the slip opinion.) The irony in this decision is that New York won their position within the state court jurisdiction but lost to the final decision in the (USSC). Additionally, the use of judicial precedent was used by the (USSC) using its own leading decisions in District of Columbia v. Heller, 554 U. S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268; 76 U.S.L.W. 4631, and McDonald v. Chicago, 561 U. S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523; 78 U.S.L.W. 4844, to hold that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.

The Dobbs case is a lot more complicated. This case hits more than the judicial system, it hits every person in the United States concerning the application of a Constitutional right. What faced the court was something called a “super precedence“ issue concerning the decision in Roe v. Wade. When I tried looking up the definition of a “super precedence” in Black’s Law Dictionary listed above, there was none in that issue. I tried a newer version of Black’s, i.e. the Abridged sixth Edition, 1991, with the same result. Lastly I went back to Wikipedia and found the following:

““Super stare decisis” is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power, or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned.

In 1976, Richard Posner and William Landes coined the term “super-precedent” in an article they wrote about testing theories of precedent by counting citations. Posner and Landes used this term to describe the influential effect of a cited decision. The term “super-precedent” later became associated with [a]{sic} different issue: the difficulty of overturning a decision. In 1992, Rutgers professor Earl Maltz criticized the Supreme Court’s decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed “by a kind of super-stare decisis.” The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term “super-stare decisis” now usually refers. [citation needed]

The concept of super-stare decisis (or “super-precedent”) was mentioned during the hearings of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the committee chair, Senator Arlen Specter of Pennsylvania, wrote an op-ed in The New York Times referring to Roe as a “super-precedent”. He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept.“ (Wikipedia on “precedent” as of June 25, 2022, https://en.wikipedia.org/ wiki/Precedent).

For those who ascribe to the “super precedent” status of a decision, one may look at the number of cases that Roe had as of June 25, 2022. This is more than likely off by an unknown amount due to the research being done on the commencement date of writing. It is: ““Cited by“ 3,934”, “Federal Courts 2,634”, including “U.S. Supreme Court 140”, “State Courts 1,931”, “Unreported 775”, and “Reported 3,687”. (See Lexis check on Roe case conducted by author on June 25, 2022).

For those who look at the variety of other possibilities, it takes a more difficult explanation. “Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.” (Slip op. p. 53, Dobbs v. Jackson Women’s Health Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057).

Continued on page 12

Popularity in the decision of the court is not sufficient to maintain that decision forever. History may play a part but is not always sufficient enough to decide a case. The court lists multiple issues that are used by our citizens. But the court tells us the five factors they used:

“Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. Janus v. State, County, and

Municipal Employees, 585 U. S. ___, ___-___ (2018) (slip op., at 34-35); Ramos v. Louisiana, 590 U. S. ___, ___-___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 7-9).

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” (Slip op. page 63, Dobbs v. Jackson Women’s

Health Org., Supreme Court of the United States,

December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057)

The court also justified its decision by pointing out that this is not the first major decision that overruled a prior (USSC) decision. The court listed:

“Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L.

Ed. 873 (1954), the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. Id., at 488, 74 S. Ct. 686, 98 L. Ed. 873 (internal quotation marks omitted). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule.

See Brown, 347 U. S., at 491, 74 S. Ct. 686, 98 L. Ed. 873.” (Slip op. pp. 62-63, Dobbs v. Jackson Women’s Health

Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057. The list contains additional cases changed by the court. See pp. 63-64; Footnote 48 contains 1 1/4 page list of cases).

The final decision:

“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” (Slip op. p. 96,

Dobbs v. Jackson Women’s Health Org., Supreme Court of the United States, December 1, 2021, Argued; June 24, 2022, Decided, No. 19-1392. 2022 U.S. LEXIS 3057.)

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