I had to think very long and very hard before writing this headline. It feels like a controversial statement in my mind as I think and write about it. It even feels almost anti-American in a way to think this. How could someone as patriotic as I attack an important and mostly cherished institution like the legal system? Am I just another one of the evil racist Alt-Right maniacs looking to destroy the government? I thought about the first question a lot more than the second because I know who I am and I know what I believe at all times.
What I believe is therefore not that I am attacking the courts out of any animus, hate, or opposition to them but because they have chosen to rely on a practice that leads to lazy cookie cutter judgments and may even actively lead to an erosion of rights over time. We have to think carefully about this subject. We owe this newly discovered theory at least the time of day to examine it before we dismiss it as lunacy.
So what exactly is a judicial precedent? A judicial precedent is what happens when one court at any point in time makes what is consider a major first time ruling on a subject. Future courts then continue to draw upon it as the beginning of legal logic for that subject to then be approached in the future. These first time decisions then stand for years or even decades until, usually quite controversially, over turned and the precedent is broken. When these decisions become decided and then apparently become enshrined they take on a unique form in the American legal system in that they aren’t laws but they seem to have the weightiness and power of law with other judges and courts.
This is the first and biggest problem with the concept of judicial precedents in our system. When one judge in one court makes one decision on one case he wields almost dictatorial authority over future similar cases until another judge has the courage to over turn him. This is not always *so* difficult because when judicial group think deems a decision bad then judges are more emboldened to over turn it. This is not sufficient however because leads to undue influence on the part of law professors and mentors who directly mold and shape the opinions of the those pupils who become judges.
The second problem is a problem that often follows as result of the first. The second problem is that these shadow laws then often result in clever bureaucracies and individuals manipulating the near legal status of these precedents to shield and protect themselves from real laws and judgments against their interests. This leads to things like federal agencies seeping into and through regulatory and legal cracks to write shadow laws and regulations of their own that restrict the liberty of individuals and businesses across our nation.
The best answer and solution to these problems is two fold. Stop giving other judges’s rulings near legal status. Then once this is done banish the thought from our heads that judges can alter even an understanding of the law. They should be able to do naught weigh one law against another and issue a judgement for only one case at a time. These judgments then also need to rest solely on the constitution and relevant laws that are passed and flow down and out from there.
Now before this is wrapped up I should acknowledge that not all precedents have had a net negative outcome, such as “Miranda rights.” Perhaps though things like these should be taken before state and then the federal legislatures so that bad judges could not then over turn these few good precedents that we have. My purpose here is not to verbally assault the courts, rather it is to encourage them forward in their most correct role as a weight scale for the laws that only our legislatures may rightfully produce. Let the courts settle suits. Let the executive enforce the laws that become written. FOR THE LOVE OF GOD let only the legislature grant things legal status through the laws that they choose to pass.