Precedent
17
MENTIONS
4
EPISODES
4
PODCASTS
Search complete. 17 mentions across 4 episodes found for "Precedent".
Nov 2, 2026
Kyle NazarethHOST
Right.
Kyle NazarethHOST
They're both originalists about precedent.
Kyle NazarethHOST
But Justice Scalia saw Stare Decisis as more of a pragmatic exception to originalism.
Kyle NazarethHOST
Sometimes a wrong decision is so settled that undoing it would cause more harm than good.
Kyle NazarethHOST
But Justice Thomas usually takes a harder line approach, and he says that if a precedent is demonstrably erroneous, the court should simply just correct it, right? And Scalia actually did write the dissent in Hill that the Dobbs decision footnote was relying on.
Kyle NazarethHOST
So I'd be really curious to kind of hear if we could channel the ghost or the spirit of Justice Scalia, whether he'd agree with Justice Thomas that lower courts can treat Hill as a dead zombie president already at this point, or does he, would he have insisted that we have to wait for the Supreme Court to decide on that issue?
Frank DeVitoHOST
Yeah, a lot of interesting points here.
Frank DeVitoHOST
I think the first thing I would say is that, right, if you're talking about the weight of stare decisis, I think there's a stronger case for, like, for example, not just overruling substantive due process as a legal fiction, because I think I use that as an extreme because I think due process is clearly about process and not about substantive rights.
Steve HaywardHOST
You had five, but the second one is one that, so the article, listeners, was published in 1995, so it's 30, wow, 31 years old.
Steve HaywardHOST
Your second one was abandon the idea of stare decisis for questions of constitutional law.
Steve HaywardHOST
And I mean, isn't it fair to say that the court has started to do that, or not as far as you maybe think they should?
Michael Stokes PaulsonGUEST
I mean, they've never said that stare decisis is absolute nonsense in constitutional law, but I've said that now in many articles.
Michael Stokes PaulsonGUEST
It's a very simple three or four line proof.
Michael Stokes PaulsonGUEST
And I should attribute some of this to Gary Lawson, who was influential in my thinking.
Steve HaywardHOST
I just want to start some discussion.
Steve HaywardHOST
So I want to read two sentences and see if maybe, not that you stand behind them, but have gone further as you, I think, may have hinted.
Clarence ThomasGUEST
Uh, what do you do with Kiser?
PageGUEST
Uh, the significant fact of Kiser is that it, uh, weakens the force of stare decisis, uh, in, in, uh, because, uh, it w- it weakens seminal rock, and so for that reason, uh, the court should return to first principles and reconsider the terms of the statute.
PageGUEST
My first line position, my primary rule that I s- uh, suggest the Court ought to follow, um, is that it should simply review the text of the Sentencing Reform Act and, uh, ought to, um, therefore conclude that no deference is appropriate.
PageGUEST
However, if it believes, uh, that, that Kiser sets forth the appropriate rule, uh, for agencies, at least the rule here ought to be as favorable, uh, to judicial resolution of, uh, legal provisions as was Kiser.
12 MINS LATER
Neil GorsuchGUEST
Page.
PageGUEST
Concerning that.
Neil GorsuchGUEST
Uh, uh, on stare decisis, um, uh, it seems to me we'd, we'd first have to acknowledge that the circuits are currently badly split, and somebody's gonna be, existing law below is gonna be rejected.
PageGUEST
I, I think that's clear.
Clarence ThomasPANELIST
Uh, what do you do with Kiser?
Kevin Joel PageGUEST
Uh, the significant fact of Kiser is that it, uh, weakens the force of stare decisis, uh, in, in, because, uh, it w- it weakens seminal rock, and so for that reason, uh, the court should return to first principles and reconsider the terms of the statute.
Kevin Joel PageGUEST
My first-line position, my primary rule that I s- uh, suggest the court ought to follow, um, is that it should simply review the text of the Sentencing Reform Act and, uh, ought to, um, therefore conclude that no deference is appropriate.
Kevin Joel PageGUEST
However, if it believes, uh, that, that Kiser sets forth the appropriate rule, uh, for agencies, at least the rule here ought to be as favorable, uh, to judicial resolution of, uh, legal provisions as was Kiser.
48 MINS LATER
Eric J. FeiginGUEST
First of all, as I, I was just saying, I think, uh, at least as we look at it today, even if you think Stinson was incorrect in the first instance to interpret the Sentencing Reform Act to adopt the measure of deference from Seminole Rock and, uh, or, or, or simply e- even in thinking commentary is a thing the Commission can do, we have 40 years of practice, and then Congress in 2002 in the Protect Act itself modifying commentary to make sure that it's consistent with the guideline.
Eric J. FeiginGUEST
In the-
Neil GorsuchPANELIST
I get that's a stare decisis argument, but I was asking you what, you know, just as an original matter, what, how can you defend silence as, as, as a delegation and ambiguity as a trigger? And I haven't heard an answer to that yet.
Eric J. FeiginGUEST
Your Honor, so I think one thing that the Commission is certainly entitled to do under A1 is to promulgate a guideline.