Black-Letter Law

In reviewing the story of the Alabama supreme court decision on the status of embryos being stored for in-vitro fertilization (IFV) treatments, I learned an interesting new term: "black-letter law" (also known as "hornbook law"), defined as 

"... standard rules that are generally known and free from doubt. The black letter law on any subject consists of the principles so fundamental in that subject and contained so frequently in hundreds of years of common law that challenging them would be extremely difficult."

This appears to be related to the legal principle, recently shredded by the U.S. Supreme Court, of "stare decisis" ("settled law"), which states that

"... courts will adhere to precedent in making their decisions."

Black-letter law may not be as black*, nor stare decisis as settled as we think, for the Supreme Court has also ruled that 

"... stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.”

But who decides whether a prior decision is "unworkable or badly reasoned," and on what basis do they make the decision? 

The waiver of stare decisis has allowed the righteous overturning of disastrous decisions like Plessy v. Ferguson, which sanctioned racial segregation in the United States. Unfortunately, it has also led to more questionable decisions such as the recent Dobbs decision that overturned the protection of abortion rights codified in Roe v. Wade ... the first time** a Supreme Court decision has taken away, rather than granted or reinforced a right. Where one can defensibly argue that Plessy v. Ferguson was "wrongly decided" based on Constitutional guarantees of equal rights (not to mention simple human decency), the decision to overturn Roe v. Wade - like the decision in the Alabama case - seems to have been based primarily on religious arguments of questionable Constitutional validity which replaced factual legal analysis and logic with faith-based theological dogma.

We are approaching a time when "black-letter law" is what the party with political control of the courts decides it is. The current Supreme Court, heavily conservative, is clearly willing to overturn settled law with which it philosophically disagrees, stare decisis be damned. 

Perhaps it is time to stop referring to "black-letter law" and start referring to "gray-letter law." The Scarlet Letter has already been taken, in a different context ... and if the GOP has its way, it may well be back.

Have a good day. More thoughts coming.

Bilbo

* I'm reminded of the wonderfully eerie short story "Absolute Ebony," by Felice Picano, about an artist's search for the ultimate, perfect shade of black ... and what comes with it.

** As far as I know.