“Super-precedent”?

Wha’?!?  WTF is that?  I’ve never heard that term before.  As far as I know, there’s only ONE “super-precedential” decision: Marburg vs. Madison, establishing the right of judicial review.    Meaning: the Supreme Court gets to measure the actions of the other 2 branches against the Constitution.  And, it gets to “review” its own prior decisions too.
There are 3 things you can do with precedent: follow it, or distinguish it, or yes, overrule it.  I don’t care about Roe.  But I keep hearing in my mind something I read once: the definition of tyranny is to make a fluid situation static.

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17 thoughts on ““Super-precedent”?”

  1. Well, that’s what you get with a “living constitution”: all kinds of bugs keep multiplying and emanating out of penumbræ all over the place.

    One exchange with Durbin yesterday was worrisome in regard to the prospects for Judge Barrett to “grow in office”.

    I think it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, whether as you say it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions…

    I can’t find “outright” or “systemic racism” anywhere in my Ron Paul pocket constitution, but I haven’t checked every penumbra.  For that matter, I can’t find them almost anywhere in the United States.

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  2. Here’s some factsies I’m trying to memorize:

    Blacks are about 13% of our population, but commit 50% of murders and 60% of robberies (which means taking someone else’s possessions person to person).  Yet in 2020,  slightly over twice as many whites than blacks were shot by police.
    Get the Eff REAL.  Any kind of discrimination based on race has been illegal, and culturally unacceptable,  for well over 60 years now.  What we’ve got is systemic ANTI-racism.

    While I’m at it: illegal immigrants make up about 7% of the pop, but make up 24% of all federal property crime arrests and 28% of all fed fraud arrests.  (the states, as you know, aren’t allowed to keep track of immigration status any more.)

    Increasingly, I’m a big-picture person.  And the big picture loox reeeeel good, actually.  Let’s cut  the crap.

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  3. An advocate makes virtue of failure. The worse the cure the better the treatment – and the more that is required.

    I have a dream that one day every person shall be hobbled, every society shall be crippled. The intelligent shall be crushed, the stupid shall be exalted, and the honest shall be extinguished. Glory of the present shall be smothered by fears of the future. All will be mandated to pay dearly for that which they do not desire, will not receive, and then become necessary crimes’ convenient criminals imprisoned for doing and not doing. Thank God Almighty, we are Globalist, Progressive, Liberal at last!

    Democrat Socialism says, “VICTORY AT EVERY COST!”

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  4. Marbury v. Madison was wrongly decided. The Court deliberately wrongly decided the case so as to establish the principle of judicial review.

    They wrongly asserted that the law giving jurisdiction to the Supreme court was unconstitutional.

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  5. ctlaw:
    Marbury v. Madison was wrongly decided. The Court deliberately wrongly decided the case so as to establish the principle of judicial review.

    They wrongly asserted that the law giving jurisdiction to the Supreme court was unconstitutional.

    That may be, but establish judicial review it did.  It’s the mother of all precedents.

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  6. John Walker:
    Well, that’s what you get with a “living constitution”: all kinds of bugs keep multiplying and emanating out of penumbræ all over the place.

    One exchange with Durbin yesterday was worrisome in regard to the prospects for Judge Barrett to “grow in office”.

    I think it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, whether as you say it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions…

    I can’t find “outright” or “systemic racism” anywhere in my Ron Paul pocket constitution, but I haven’t checked every penumbra.  For that matter, I can’t find them almost anywhere in the United States.

    I feel the same way about this clip.  She might prove a quisling.  She might be another Dread Pilate Roberts.

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  7. Hypatia:

    ctlaw:
    Marbury v. Madison was wrongly decided. The Court deliberately wrongly decided the case so as to establish the principle of judicial review.

    They wrongly asserted that the law giving jurisdiction to the Supreme court was unconstitutional.

    That may be, but establish judicial review it did.  It’s the mother of all precedents.

    It’s a faulty foundation on which our legal house is built. It’s a precedent, that’s all. Nothing super or “mother” about it. It is just as open to being over turned as any other.

     

    I too share your interest in where this term “super precedent” came from? Was Plessy prior to 1953 considered a super precedent? Inquiring minds want to know. Who decides what is a super precedent? Is Wicker v Fillburn a super precedent? You know Lochner is still law albeit hated. Is that a super precedent?

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  8. Hypatia:

    John Walker:
    Well, that’s what you get with a “living constitution”: all kinds of bugs keep multiplying and emanating out of penumbræ all over the place.

    One exchange with Durbin yesterday was worrisome in regard to the prospects for Judge Barrett to “grow in office”.

    I think it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, whether as you say it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions…

    I can’t find “outright” or “systemic racism” anywhere in my Ron Paul pocket constitution, but I haven’t checked every penumbra.  For that matter, I can’t find them almost anywhere in the United States.

    I feel the same way about this clip.  She might prove a quisling.  She might be another Dread Pilate Roberts.

    …and speaking of quislings: the last thing I read on Q (haven’t been able to call up the site for a few days now) was a quotation from Brennan endorsing Gina Haspell as CIA director….now she’s blocking the release of the documents Trump de-classified re the Russia  hoax.  Is EVERYBODY in  DC rotten thru ‘n’ thru?

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  9. In science and engineering we sometimes have what amount to “super-precedents”, and while sometimes they’re just annoying, on other occasions they have real economic and societal costs which last for decades.

    Consider, for example, the “flow of current” in electrical and electronic engineering.  As people were coming to understand electricity, they likened its flow to that of a fluid though a pipe and adopted a convention that current always flowed from positive to negative voltage, just as fluid flows from high to low pressure (which is the fluid analogue of voltage).  It was only much later that it became understood that the “flow of current” is actually a flow of electrons which, based on the original convention, have charge of −1, and hence the electrons are actually flowing in the opposite direction from the “current”.  Electricians can ignore this, but when you have to think about what the electrons are doing (for example, flowing from the negative cathode to the positive plate of a vacuum tube), it can be confusing.  The pioneers of electricity had to guess: they had a 50% chance of getting it right, and they got it wrong.

    Today, however, the concept of the electron having a negative charge and flowing in the opposite direction from “current” is so deeply embedded in millions of pages of textbooks, schematic diagrams, and the minds of practitioners, that changing it in the interest of “clarity” would cause far more trouble than any possible benefit.  It is a super-precedent, because it’s just too hard to fix.

    Another example which occurs frequently is adoption of standards in rapidly-evolving technologies.  The U.S. was the first country to bring colour television to the market, and adopted a standard called NTSC, which fit well into the existing broadcast infrastructure.  After a slow start, it took off and before long millions of receivers were installed built around that standard.  But it had problems, and was jokingly nicknamed “Never Twice the Same Colour” and required a “Hue” control you had to twiddle to keep people’s faces from being shocking pink or sickly green, and would change colours with interference.

    Several years later, when Germany was adopting colour television, they developed a system called PAL which, by inverting the phase of the colour signal on alternating lines and averaging to get the zero point, produced rock-solid colour without a Hue control.  This was barely more complicated than NTSC and much superior, but by then it was too late for the U.S.: tens of millions of homes had NTSC receivers and thousands of broadcasters had cameras and modulators built around the system and there was no hope of changing and, indeed, NTSC lived on until it was finally replaced by digital broadcasting.

    Super-precedents are real and, unfortunately, they are not always a good thing.  Current software technology and the Internet are full of them.

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  10. Our host:  “Super-precedents are real and, unfortunately, they are not always a good thing.  Current software technology and the Internet are full of them.”

    Isn’t that really another word for path-dependency.  It is why most vehicles have gasoline engines instead of methanol engines.  It is why we have an entirely arbitrary meter (the distance light travels in a vacuum in a rather non-intuitive 1/299792458 part of a second).  Path-dependency seems inevitable — people start doing something, which leads to an infrastructure that becomes unduly burdensome to change.  Even French air traffic control still implicitly uses feet as the basis for specifying the height of an aircraft’s permitted flight path.

    A purist would believe that one area which should be totally free of path-dependency is the law.  Judges should never legislate from the bench by creating “precedents”.  Judges should simply apply democratically-approved laws as written — and if there is no democratically-approved law, then there is no law.  Legislating from the bench ought to be a capital offense.  When we get onto a different path after the collapse, it will be!

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  11. Arlen Specter tried to get Roberts to say Roe v. Wade was a superprecedent during his confirmation hearings. I assume he thought that saying “Roe just can’t be overturned” would sidestep the issue.

    It sounds like Barrett wrote a law review article trying to re-brand superprecedent to mean “decisions that stood the test of time, and are no longer controversial.” The question to her appears to use Specter’s definition, and her answer uses her own. I think the exchange left most people scratching their heads.

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  12. Okay, there may be “super-precedents” in physics, (if that’s what JW and Gavin are talking about….🤪can’t prove it by me! )   My point was, In the course of decades of legal research, I have never encountered a court opinion where that phrase was used. I just now searched the phrase on Westlaw, and I find 3 law review articles mentioning the concept but turned up no cases.  It appears,  as Max points out in comment #14 above, that the primary venue where it has been used is Senate confirmation hearings.
    When  the use of the Miranda warnings was challenged,  The Supreme Court said something about the talismanic phrases now being deeply engrained in our culture or part of our cultural fabric, sump’n like that— By which I guess they meant, come on, we hear them  in TV shows all the time, everybody can recite the Miranda warnings,  even people who have never been arrested!  But I don’t think they called the Miranda case a “super-precedent”.

    The phrase is, as one legal commentator wrote, mere “jargon”—in the discipline of jurisprudence, that is, notwithstanding whatever  it may mean in the physical sciences.

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  13. The very phrase brings to mind the “law of the Medes and the Persians” in the book of Daniel, which “once it is written down, it cannot be changed” .   Remember the result of that? The king can’t revoke his decision that on a day certain all Jews shall be sought out and murdered by his subjects.  All he can do is issue a second equally unchangeabke edict: that the Jews may arm and defend themselves and kill their would be murderers.
    It also makes me think of Bradwell v. Illinois,  where the court thundered that women could not be admitted to the bar, for “This is the Law of the Creator!”
    And I maintain, and thus shall ever say: ALL legal precedent can be followed, OR distinguished, OR overruled.  There can be no judicial pronouncement not subject to all three of these alternatives.  Because what was once merely “common sense” will often come,  in time,  to seem neither common nor sensible.

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  14. Hypatia:
    The very phrase brings to mind the “law of the Medes and the Persians” in the book of Daniel, which “once it is written down, it cannot be changed” .   Remember the result of that? The king can’t revoke his decision that on a day certain all Jews shall be sought out and murdered by his subjects.  All he can do is issue a second equally unchangeabke edict: that the Jews may arm and defend themselves and kill their would be murderers.

    Nice citation; apt for the circumstance.

    It also makes me think of Bradwell v. Illinois,  where the court thundered that women could not be admitted to the bar, for “This is the Law of the Creator!”
    And I maintain, and thus shall ever say: ALL legal precedent can be followed, OR distinguished, OR overruled.  There can be no judicial pronouncement not subject to all three of these alternatives.  Because what was once merely “common sense” will often come,  in time,  to seem neither common nor sensible.

    Common sense is in extraordinarily short supply.

    The Left has been working hard for three centuries to make nonsensible things common.

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