The two key words in assessing the President’s nominee to replace Justice Anthony Kennedy are stare decisis. This ancient Latin phrase, which means let the decision stand, represents a conservative approach to judging: that precedent imposes constraints on judicial innovation. Put another way, that judicial innovation should be balanced against the need to maintain stability in our legal system. But like most legal terms, stare decisis can easily be manipulated to benefit both conservatives and liberals. Traditionally it has been conservatives who have embraced stare decisis, allowing the dead hand of the law to constrain the living constitution. But liberals, too, embrace the concept when they seek to preserve old precedents that are important to them.
Today, liberals want to use stare decisis to preserve Roe v. Wade, gay marriage and other iconic liberal decisions of the past. Many conservatives would like to see these decision overruled. When the President interviews potential nominees, and when the Senate advises and consents on the nomination, these nominees will be questioned about their positions on important cases of the past and their likely votes in the future. They will decline to be specific claiming the need for judicial independence. But one area of legitimate inquiry will be their institutional views regarding stare decisis.