Before The Law

I assume Mark Joseph Stern likes stare decisis when it suits him.  He's undoubtedly pro-Roe v. Wade and its progenitors.  Probably agrees with Obergefell, and Gideon, Miranda, and other opinions of some long-standing that today's arch-conservatives would probably love to see overruled.  Stare decisis is the last line of defense against the Supreme Court making law as it suits them, to be unmade by the next court majority as it suits them.  And yet Stern's analysis (such as it is) of Elena Kagan's opinions is that she isn't transactional enough, because it could be her stand on stare decisis won't end up moving the needle among the Court's conservative justices, and they will continue to overrule precedent as it suits them.

Which is precisely how Stern thinks the justices should vote; except in the way that suits him.

There is a whole branch of legal reasoning called "jurisprudence."  It's not exactly a philosophy of law branch of thought, akin to philosophy of religion; but rather lawyers trying to think in terms larger than a particular case (the only kind of legal reasoning courts are allowed to engage in) and consider how the law should be shaped by judges.  In that sense, it's a school of thought peculiarly situated in the legal system the lawyers practice.  In a system based on precedent and stare decisis, such as ours, that raises questions of how and why the law is applied to a given set of facts.  On the one hand, the law can be inflexible: the rules are the rules, break them, and you are punished according to the rules.  On the other hand, that's rule by robots, not by human beings, and judges are supposed to be repositories of knowledge, not just data.  So how should a judge decide a case?  Blunt application of the "rules," or consideration of the circumstances and precedent and the parties to the case?  I remember a number of schools of thought on this, and I remember few details now beyond what Learned Hand called the "judicial hunch," the sense of what justice would be in a given case.  That sounds a bit like the determination is made by flipping a mental coin, or the luck of drawing a good judge rather than a bad one, and there is always that risk anyway.  Hand meant something a bit more determined than just throwing darts blindfolded; but he meant something far less than the transactional "what's in it for my judicial philosophy?" argument that Stern is basically making here:

The strongest critique of Kagan’s strategy is that she is giving up something for nothing, trading away her votes for table scraps. We probably don’t have enough data yet to make that determination either way. Assessing her work in 2019, the New Yorker’s Margaret Talbot concluded that the jury is still out. She’s right, but by the end of this term, we should have a better sense of the final verdict. The justices are poised to rule on a number of hot-button issues, including abortion rights, contraception, religious liberty, LGBTQ discrimination, and Donald Trump’s power to shield his financial records from congressional oversight. If Kagan can hold the line in any one of these cases, or mitigate potential harm by forestalling a 5–4 defeat, her conservative votes may be vindicated. If she fails to prevent a clean sweep of conservative triumphs that fundamentally reshape the law as we know it, she might have some soul searching to do. 

Is Kagan's role on the Court to save us from the conservatives?  Or is it to act as a judge, and seek justice in the cases before her?  If it's the latter, in the words of the old comic books about why bad guys kill but good guys don't, how are we any different than the bad guys then?  The argument Stern is making is that conservative justices and judges are bad, because they have a nefarious agenda.  I tend to agree, and that's one reason stare decisis should be a polestar, and all but fixed and absolute rule, especially at the level of the Supreme Court.  Because if it isn't, if the only final rule of law is what "we" think should happen, we don't need justices:  we just need power.

Sir Thomas More: There's no law against that.

William Roper : God's law!

Sir Thomas More: Then God can arrest him.

William Roper: While you talk, he's gone!

Sir Thomas More: Go he should, if he were the Devil, until he broke the law.

William Roper: Now you give the Devil benefit of law!

Sir Thomas More: Yes, what would you do?

William Roper: Cut a road through the law to get after the Devil? Yes. I'd cut down every law in England to do that.

Sir Thomas More: And when the last law was down, and the Devil turned on you...where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast...Man's laws, not God's, and if you cut them down...and you're just the man to do it...do you really think you could stand upright in the wind that would blow then?

Yes. I give the Devil benefit of law for my own safety's sake. 

I don't admire Thomas More so much as I admire Robert Bolt for writing that dialogue.  It may have nothing to do with the historic figure, but it's a fine piece of jurisprudential reasoning.  I don't want Elena Kagan deciding cases based on a strategy that will "trap" Roberts and others as she runs rings 'round them logically.  That expectation never works, except in the movies where the writer determines the outcome.  Even Bolt's argument in More's mouth is relentlessly reductionist, but it makes a valid point:  be careful what you wish for, you might get it.  Justice is not done because Mark Joseph Stern likes the legal outcome; nor is it done because he dislikes it (I always thought that argument that you were doing it right if no one like what you were doing was crap.  Is Trump doing anything right, aside from pursuing an approval that keeps escaping him?).  This is not binary, an either/or; nor is it a simple both/and.  Making legal decisions is very difficult; explaining them is even harder.  It may be the "conservative" position to back stare decisis, but Kagan is right:   “society relies on the idea that law is stable and law is predictable and law won’t change just because particular members of the court are different or change.”  Is there a better defense of the law not changing to suit arch-conservatives, even if it means it won't change to suit me, either?  And why is my preference better than yours?

You see where this leads to....