How Judges Overrule: Speech Act Theory and the Doctrine
of Stare Decisis |
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Pintip Hompluem Dunn [View as PDF]
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113 Yale L.J. 493 (2003)
Judges have been called liars, but lying is not necessarily a bad thing. Judges must be given the ability to overrule; otherwise, we would be stuck with a decision even if it was wrongly decided and times and thinking had changed. In the recent case of Lawrence v. Texas, the Court employed many of the rhetorical devices identified in this Note to overrule the controversial case of Bowers v. Hardwick. Lawrence held that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual contact violated the Due Process Clause.
The Lawrence Court applied two of the Casey factors--that Bowers had not induced detrimental reliance and that the case itself had caused uncertainty. It cited the dissenting opinion of Justice Stevens in Bowers as support for the present decision. It employed elements of implicit overruling by asserting that cases subsequent to Bowers had already weakened Bowers's foundation. It even enacted the performative fallacy of "saying makes it so" by asserting its superior intelligence in authoritative tones.
Whether or not Lawrence was rightly decided, the Court requires the flexibility of overruling. The Justices are not trying to trick us when they use these rhetorical devices. They are not trying to enact bad law through sleight-of-hand semantics. Rather, these devices allow the Justices to achieve the near impossible--the ability to overrule effectively when necessary, even as the very legitimacy on which they rely to give their rulings force is threatened.
Judges may be liars, but in this paradoxical world of law in which we live, they have no other choice. They must lie, or the fiction of legitimacy that we have so carefully constructed will come crashing down, bringing with it the entire judicial system as we know it. We should thank our lucky stars, then, that they do their job so well.
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