"The doctrine of stare decisis gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.
"Nearly a half century ago in Apodaca v. Oregon, 406 U. S. 404 (1972), the Court held that the Sixth Amendment permits non-unanimous verdicts in state criminal trials, and in all the years since then, no Justice has even hinted that Apodaca should be reconsidered. [...]
"I would not overrule Apodaca. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance. And before this Court decided to intervene, the decision appeared to have little practical importance going forward. Louisiana has now abolished non-unanimous verdicts, and Oregon seemed on the verge of doing the same until the Court intervened."
Thanks for posting. Very helpful. And now I’m glad the decision turned out the way it did.
I believe there should be no “common law” (ie evolving body of law based on precedent) for the Constitution. The real common law can evolve as it has for a thousand years, and if one court goes wrong others can steer it right again. And if they all go wrong the legislature can overrule it all with a statute (cf. The Statute of Frauds).
With Constitutional law there is only one court, and that court presumes to be superior to the legislature.
Thus I think whenever a constitutional case presents itself, the court should review the Constitutional issues de novo, starting with reading the text fresh and looking only to contemporaneous accounts (and history at tht time) if it’s necessary to figure out what it means.