From Judge Wilson's concurrence in Friday's Dershowitz v. CNN, Inc. (and see also Judge Barbara Lagoa's concurrence taking the opposite view):
"Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function." I believe that Sullivan reflects "the accumulated wisdom of judges who have previously tried to solve the same problem."
To be sure, our understanding of the First Amendment should be guided by its original meaning and heed common law traditions. But "ambiguous historical evidence" does not justify casting aside a unanimous Supreme Court decision and nearly sixty years of settled precedent. The "real-world consequences" and reliance interests at stake counsel us to pump the brakes before calling to overrule Sullivan….
Adherence to precedent is "a foundation stone of the rule of law." Stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion," and "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals." …
"The Framers of our Constitution understood that the doctrine of stare decisis is part of the 'judicial Power' and rooted in Article III of the Constitution." Alexander Hamilton wrote that to "avoid an arbitrary discretion in the courts, it is indispensable" that federal judges "should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Blackstone wrote that "it is an established rule to abide by former precedents," to "keep the scale of justice even and steady, and not liable to waver with every new judge's opinion."
Of course, Judges and even Justices, are fallible. And it is especially important for the Court to correct errors in constitutional rulings, which "Congress cannot override … by ordinary legislation." But even in constitutional cases, the Supreme Court "has always held that 'any departure'" from precedent "demands special justification." This is especially true when the constitutional protections recognized by the precedent have "become part of our national culture." …
