The doctrine that court precedents should have momentum for respect — the predictability of settled law gives citizens due notice of what is required or proscribed — is called stare decisis. This Latin translates as: “To stand by things decided.” The translation is not: “If a precedent was produced by bad reasoning and has produced irrational and unjust results, do not correct the error, just shrug, say, ‘well, to err is human,’ and continue adhering to the mistake.”
Recently, the Supreme Court was roiled by an unusually pointed disagreement about stare decisis. It occurred in a case that demonstrated how, when judicial review works well, Americans’ rights can be buttressed and American liberty enlarged by a process that begins when the denial of a right is challenged by someone who thinks that precedents, although important, are not graven in granite by the finger of God. Someone like Rose Mary Knick.
This 70-year-old challenged a 34-year-old Supreme Court precedent that substantially impeded her ability to contest a township ordinance that significantly burdened her property rights over 90 rural acres in Pennsylvania. In the past, that state had many burials on private land, and in 2012 Knick’s township decreed that all cemeteries (defined as any land ever used for burials) must be open to the public during daylight, and that township personnel could enter such properties to look for violations. There is some evidence that there might have been a small burial plot on her property.
The Fifth Amendment’s Takings Clause says that “private property (shall not) be taken for public use, without just compensation.” Knick, who was exposed to cascading fines for resisting the township’s ordinance, wished to challenge the ordinance as a taking. But because of a 1985 court ruling, she was confronted with what Chief Justice John Roberts last week called a “Catch-22.”
