Modern constitutional jurisprudence is frustrating. There is so much attention paid to precedent, and so relatively little to the text of the Constitution. In law school I was very much struck by this experience. I did what I could in the classroom and on exams to resist this current.
In these hearings on Neil Gorsuch’s nomination to the Supreme Court, some U.S. senators invoke the concept of “super precedent.” I never heard such a thing mentioned in law school, nor have I seen any appeal to its authority in Supreme Court holdings. For some, “super precedent” is unassailable law that has been settled by multiple Supreme Court holdings.
Plessy v. Ferguson and its “separate but equal” holding was also buttressed by followup holdings. Brown v. Board of Education overturned that apple cart and ushered in a whole new era.
There is wisdom, I think, in embracing humility instead, and dispatching the ridiculous concept of “super precedent”. Human beings can and do sometimes get it very wrong. Let the axis upon which our best jurists turn be the text of the Constitution, and not primarily precedent.
David Williams, Esq., is CEO of Presto Servers, Inc. He can be reached at firstname.lastname@example.org.