Valuing Precedent Differently

Emily M. Calhoun

in Losing Twice

Published in print March 2011 | ISBN: 9780195399745
Published online May 2011 | e-ISBN: 9780199894444 | DOI:
Valuing Precedent Differently

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Harm-amelioration practices clearly keep the courthouse door open for constitutional losers to redeem constitutional meaning in different times and contexts and make it difficult for us to deny the “never-say-never” features of rights adjudication. Never-say-never terrain may seem dangerous to some, for it arguably gives us insufficiently authoritative statements of constitutional meaning, is susceptible to arbitrary judicial action, and puts judicial legitimacy on shaky ground. In particular, some may be concerned that it threatens our system of precedent, in which prior decisions are seen as final resolutions of rights disputes that control what justices do in subsequent controversies. These fears are illusory. Nothing in harm-amelioration practices compromises either precedent, which is central to our system of judicial review, or appropriate finality in Supreme Court decisions. This chapter shows that harm-amelioration practices only help us learn to value precedent and finality differently. Moreover, there are very good reasons to welcome the types of contingencies and opportunities for enhancing judicial legitimacy that result from harm-amelioration practices. Such practices can help us ground judicial legitimacy in new understandings of the inherently democratic character of the Supreme Court.

Keywords: constitutional stature; constitutional rights; ameliorating harm; justices; precedents; judicial legitimacy

Chapter.  4754 words. 

Subjects: Constitutional and Administrative Law

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