Stuff You Should Know - What's so important about legal precedent?

Episode Date: November 8, 2022

Legal precedent is an odd thing. It matters, but it isn't codified. There are advantages and disadvantages. Let's all dive in and take at STARE DECISIS today. See omnystudio.com/listener for privacy information.

Hey, I'm Lance Bass, host of the new iHeart podcast Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. And a different hot sexy teen crush boy bander each week to guide you through life. Tell everybody, yeah, everybody about my new podcast and make sure to listen so we'll never, ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple podcast, or wherever you listen to podcasts. Welcome to Stuff You Should Know, a production of iHeart Radio.

Hey, and welcome to the podcast. I'm Josh and there's Chuck and Jerry's here too. And this is Stuff You Should Know. And boy, do we mean it. This is Stuff You Should Know. Even though I have to admit Chuck, I don't think I've ever gotten sleepier than I was when I was researching this episode. You know, I've learned more about the law since we got this job than I ever wanted to or intended to. Right. Some of like, you know, just because we have work contracts for the first time. So some of it's because of that. Some of it because of all the trouble we get in. Yeah, all the trouble we've gotten over the years. And then we just kind of covered a lot of stuff legally speaking. And it's interesting, the law.

It is, it is. And this one was like, it was kind of tough because Olivia helped us out with this. And it was like, it's a really, unless you're in the legal profession one way or another, like it's really dry, like incredibly dry. But if you can just chip past that crusty dryness. It's still pretty dry. It takes a lot. Yeah. It gets a little moisture the further you get in. But finally, you get to the rich New Getty Center. And there you realize, whoa, this is actually super important because what we're talking about, legal precedence kind of guides our society in a lot of ways beyond just, this is law, this is not law, this is illegal, you can do this. Like we actually organize our lives in

surprising ways according to what's legal and what's not. And if the law is steady and stable, which is the point of relying on legal precedence as we'll find, then society can kind of grow and experiment and try new things because the law part is covered. But if the law is going to change every couple of years, it makes it really hard to be in a gay marriage or start a business or invest in a risky new technology because you can't rely on the law being stable, so it makes life for us unstable. And I didn't really realize just how much of a, just an effect that law has, like an unseen effect on just our day-to-day lives because you don't think about that kind of thing, but until you start researching something like this.

Right. And or until you get slapped with that lawsuit and all of a sudden you're like, what? But so much about the law, too, is attorneys love words. Yes. The simple, I mean, anyone who's ever, even if you've never dealt with an attorney, great, congratulations. I'm not saying attorneys are bad, but that means you have a blissfully simplistic way of living that is to be admired. But you've probably clicked on a terms of service or something and that's all legal words. It's all legal wording like those 900,000 words to sign up for a website or whatever or to download an app. Those are words written by attorneys and

so much of law is so specific to, it can hinge on the wrong couple of words that a well-meaning jurist typed up in their decision. Just a couple of things can really change things, a couple of words, because it's all about those words and how those words are interpreted by others. And I don't know, but that part about it I find pretty fascinating. And I think every attorney I know really values words. Let's just say that. And not like, oh, because I could charge for it. I mean, they value like, boy, you better be careful about how you say something. Yeah, it's true, which really doesn't jive with me because I'm pretty hyperbolic. And I just assume everybody's going to understand that I'm being hyperbolic, but

that's not always the case, especially I guess now that I think about it, it's when I'm talking to lawyers that it really gets lost. So I guess we should go back to the early 1100s, specifically 1154 when Henry II kind of codified the fact that England was going to be working on something called common law, or at least toward something called common law, because you'll see it takes precedent and common law and this kind of thing takes a long time to really take hold for a lot of reasons we'll get to. But it was common law because they said, hey, right now we're deciding these cases all over the land and everyone has their own opinion and it's a bit of a mess. So maybe if we had one sort of common law for all the kingdom and we could refer to that law and these decisions

to make decisions on down the line, that might be a pretty smart thing. And it was and it is. Yeah, because I mean, the stuff that they were doing locally was like, if you couldn't tell the truth between a plaintiff and a defendant, you had them both snatch a rock out of a pot of boiling water. I'm not kidding. And then whoever healed fastest was telling the truth and then you would execute the one who healed slower. Like that was the kind of legal stuff you would face like at this time. So Henry II, the idea that he came up with common law and said, all this is nuts. We're just going to have one law for all of England. It was really forward thinking. And when you dig into it a little more, he established trial by jury, the concept of circuit courts that comes

from this time when judges would travel around and go to like different localities to hear cases. And the fact that they weren't rooted to one specific locale meant that it was much more difficult to corrupt them. There was a lot of really forward thinking stuff. And the basis of it, Chuck, common law formed the foundation of not just England's law, but basically every country that was colonized by England, including the United States, we have a common law system, which is, I don't want to say the opposite, but it's one of two basic ways that you can conduct your society legally. And the other one is civil law. Right. Even though Henry II was still like, I'd still like to bob for apples and bats of acid.

Because that's just fun. Yeah, civil law is not the way we went. That was, you know, it was kind of developed around the same time and Europe back in the day, but that's common law was the smarter approach. And what we got out, what we realized early on with common laws was what we needed to adhere by was a principle that you've heard a lot kind of lately. It's a Latin term meaning let the decision stand, stare decisis. Right. And that's a big deal. Yeah. And that's, I mean, it's not like Henry II came up with common law and said, and also it's going to be based on this concept of stare decisis that actually evolved over time. And the idea

behind stare decisis is if there's a good decision made by a judge, then later judgments about cases that have some similarities are a lot in common with that case that that original decision was made on, have to follow that same precedent. It's a legal precedent. Not even good necessarily. Say again. I don't even know that I would agree that it's based on a good decision because originally it was like, they even said it was as long as it wasn't flatly absurd or unjust. Right. And they have said later on that like, and we'll get to it, but you know, the decisions don't have to be perfect. Right, right. I guess what I meant by good was good meaning like not like the judge wasn't wearing a tinfoil hat and sentenced the person to like eat

their own poop. I mean, good, like they, like it was reasonable. It was thought out. It was, you know, deliberative. Like it was a sound judicial opinion, whether it actually was good or not. Right. Okay. I'll buy that. All right. But here's the deal. Like I said earlier, like applying common law and applying precedent is something that takes a long, long time because early on, I mean, for a lot of reasons, but one of the main reasons is early on the courts were such a mess. They didn't even start recording really their decisions in a really meaningful way until like the mid 1800s in England, the early 1800s in the US. So they may not have even known there might have been precedent in any given case. But starting, like I said, early 1800s and

mid 1800s in England, we started to have a real sort of precedent. I guess. Yeah, for sure. And we talked about that in our unsung heroes of the court with our, I think our transcriptionist segment, right? I think so. I think so too. But the reason that you have this emphasis on precedence is because in a common law system, law kind of builds on judgment after judgment. And the more judgments you have about like a particular the topic or case or something, the more well rounded and robust the idea of the law concerning that goes. Like in a civil civil or in a common law society, the legislature makes a law, but it's not, you know, they don't try to lay out every single law with every single possible outcome that they can think of. That's what civil law is based on.

In common law, it's like they lay it out. It kind of makes sense. It's open to interpretation. And then people start suing each other. And then over the years, the judges figure it out. But they figure it out by basing their assumptions on the previous rulings of other judges. Right. That sounds like a good breaking point. I think so too. I'm at my breaking point. No, not already. Yep. All right. Josh is out in the first third, but we'll press on. And we'll talk about the U.S. system right after this. Hey, I'm Lance Bass, host of the new iHeart podcast Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough or you're at the end of the

road. Okay, I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. This, I promise you. Oh, God. Seriously, I swear. And you won't have to send an SOS because I'll be there for you. Oh, man. And so my husband, Michael, um, hey, that's me. Yeah, we know that Michael and a different hot sexy teen crush boy band are each week to guide you through life step by step. Oh, not another one. Kids relationships life in general can get messy. You may be thinking this is the story of my life. Just stop now. If so, tell everybody, yeah, everybody about my new podcast and make sure to listen. So we'll never ever have to say bye,

bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple podcast, or wherever you listen to podcasts. All right. So Josh is gone, everybody. I'm going to do the rest of this one solo. So we're just going to talk about cartoons and breakfast cereals. Josh, I'm back. I'm back. I couldn't leave you. So if we're going to talk about the U.S. system, as far as legal precedent goes, we need to talk a little bit, obviously, about the Constitution. The Constitution of the U.S. doesn't really talk a lot about how the court system should operate. They don't talk about precedent. This is something that the United States, you know, it goes from the top down here in the U.S. And we'll talk about it gets really confusing

at some point as far as which courts bind with other courts. So that mess will follow. But it goes top down. So the Supreme Court is really what ultimately matters and what they decide about the really important cases because everything binds upwards to them. But they didn't really like they kind of made it up as they went. And that's not to like knock the Supreme Court. It just is to say there weren't any real rules in place as far as this goes. But they realized early on and I think in 1932 is when it really became serious when a justice named Lewis Brandeis of Brandeis University fame. Oh, yeah. Oh, yeah. That makes sense. Of course, wrote in a dissent in a case, Burnett versus Coronado Oil and Gas Company, basically laid out

what Starry DeCisis is all about for everyone to look back on from then on. And they have, when he wrote in most matters, it is more important that the applicable rule of law be settled than it be settled right. And that was what I was kind of referring to earlier. He's, he's basically basically saying, listen, courts aren't perfect, laws aren't perfect, but what's really important, unless it's a really terrible, terrible decision, is that we kind of come together and agree that this is how it is. And then he went on to kind of say ultimately like, but you can overturn precedent if it is really, really bad. Yeah, because if you didn't, if you just blindly followed precedent, then you have the potential

for a bad judgment, a bad decision, infecting your society and your legal system. And if you just have to follow it blindly, even though it's a really bad ruling, that's not good. So, you need to have an outlet to overturn those bad decisions. But what Brandeis was saying is, for the most part, you want to just leave it alone. If it's even remotely good, leave it alone. Let it ride. But yeah. And that's really, to me, if you like middle of the road stuff, starting to cease this is exactly what you want. Because it's like the fulcrum between going one direction where you just have like a whiplash going on because law is changing all the time. And then the other direction on the other end of the spectrum, where the law just

does not change. It is just set in stone and that's that. This is like, okay, you want to follow tradition, you want to observe custom to have some stability, but at the same time, you want to be able to let society evolve by having the laws evolve as new ideas and concepts come around. Yeah. It reminds me of one of my favorite. I'm not a big axiom guy, but there's a handful that I really kind of inform my way of thinking. And one is don't let perfect be the enemy of good. That's always been as a sort of an underachiever in life. It's always been one I really stood on. And that's kind of what they're saying here. It's like, listen, if we go for perfect, you're just gonna, cause law is subjective too. Like these justices are deciding things based on what

they think, based on other things, but ultimately it's a subjective thing. So we can't just go back and forth forever trying to get a perfect ruling on something. Right. My favorite axiom is it has to be perfect or else I'm a completely useless human being. Oh no. Oh yes. So over time, Chuck, that concept of stare decisis, when was it? It was like the, I guess, 1932 with Brandeis? Yeah. That's when he kind of laid the gauntlet down. And think about how meta that is. He was establishing precedent about when to follow or overturn precedent. Yeah. Pretty amazing stuff. That guy deserves like a statue. A university. Sure. A university named after him. I bet there's a statue there. But over, there better be. But over time, after Brandeis said that, they were

like, okay, well, exactly when is it okay to overturn a decision? And they've actually come up with a handful of kind of guiding bullet points that are appropriately laid out and bullet points for us that just kind of say like, okay, does it check this box? Does it check that box? And it's not like a perfect scantron sheet where everything, every box is going to be filled out and you calculate them all and you say, yes, it should be overturned. There's still a lot of subjectivity and weighing all of this stuff, but it's pretty good guideline if you ask me. No, absolutely. Well, the first thing, and this is a little bit counterintuitive, but it's easier to overturn a decision based on the constitution than it is a statutory law. And

again, that seems counterintuitive because the constitution can feel so locked in. But basically what that means is if it's just statutory law, then you can change the law pretty easily. Like, the constitution is very hard to get changed. So it's easier to change a decision based on the constitution than the actual underlying constitution. Yeah, because Congress can just say, oh yeah, we myth that one. And then similarly too, Congress can actually create laws to overturn unpopular judicial rulings. Sure. So they can make a law that, if everybody's really mad about, say, some judicial ruling and Congress says, our constituents are really up in arms, let's make a law that says the opposite of what that was just ruled. That law takes precedence over every

ruling, including that Supreme Court ruling. So now judges have to follow that law until new precedents are set that adjust it and make it evolve. That's right. The next one is something called workability, which is basically how difficult in practice is it really to implement this original decision. And if it's really difficult for lower courts to follow whatever that original decision was in practice, then you may want to take another look at it. Yep. Another one is reliance. And this one makes a lot of sense to me too. It's really kind of... What's that word that people use when it's just kind of like it lacks substance though? It's not concrete. It's kind of poofy.

Coofy sounds great. I've never heard it, but I like that word. No, we're going to go with that from now on. So reliance, it makes sense, but it's a little poofy, I think legally speaking, because what it's saying is if this judgment was not quite right, if the reasoning wasn't very good, if the deliberation wasn't perfect, but it's become so enshrined in society that overturning it would basically really mess society up even temporarily, then you would not want to overturn that. There's a good example of the Miranda rights were under attack in 2000, I guess, from a case. And the court, I think in a very narrow, I think five to four ruling, said, no, Miranda should stay. It's based on a flawed interpretation

of the Constitution, but we've become so reliant on it to protect legal rights of people accused of crimes that we're just going to leave it. They said, but it's already in all the TV shows. Exactly. Law and order editors were just like, please don't, please don't. Yeah. I mean, reliance is kind of, it's too late to turn back now, basically. Yeah. The bell has been wrong. The genie's out of the bottle. The smell is in your nose. That's my favorite. The next one is abandonment, which is basically when the court says this is old-timey. This is antiquated. When they looked at Lawrence v. Texas in 2003, that overturned a previous ruling about private same sex acts, sodomy laws, things like that. The Supreme Court came

along and said, oh, you know, things have kind of changed and maybe we shouldn't be in people's bedroom enforcing laws about how they want to have sex. Yeah. They're like, we all just saw Brokeback Mountain and we really, we really feel differently about this. It was such a great love story. They wrestled. So there's also legitimacy too, which is saying like, okay, there's a really good chance that if we start overturning previous decisions that people have come to rely on, that we're actually good decisions, that it's going to harm the legitimacy of the Supreme Court in the eyes of the public. Right. I can't think of any example, but that is, it is something that they take into account when they are considering overturning something or

not. That's right. The next one, I'm just going to call it the was it close? That's when they can look back at a previous case and say, oh, you know, this was 5-4. There was a really spirited dissent. It wasn't, you know, it was maybe a controversial case, but not necessarily, but just really, really close. Then maybe, you know, we could take another peek at it. Right. There's also quality of reasoning. I've kind of hit on that a couple of times that it's like, if you can look back and look at the judgment and the reasoning behind the judgment and it still makes sense, then maybe kind of leave that law alone. If it's just completely antiquated, if it's racist, if it just doesn't jibe with the rest of, you know, society today,

then maybe it is ripe for being overturned. Or other laws, like if other laws have come along since then to kind of derode it or negate it. Or if facts have changed. Yeah, that's a big one, especially when it comes to scientific findings and stuff like that. Right. Like you find the moon is not made of cheese, so cheesemakers no longer have to pay a moon tax. That's a good example of real life. Was that off the cuff? Very nice. No, I wrote it down. That's still great. I could not think of an example, and that is the best I could come up with, sadly. That's really good. So here's where judicial philosophy kind of comes into play, because when it comes to being a jurist, as we've seen on the Supreme Court, especially lately, there are a couple of

different ways you can go as far as looking at the Constitution. You can be what's called an originalist, which some originalists say, you know what, the only thing that matters is what these founding fathers meant when they wrote these laws hundreds of years ago. Yeah. So like, whatever happens in society today, however it applies to the late 18th century, that is the law. That's what the originalists think. And there are actually justices on the Supreme Court who are fervent originalists. That's right. And there are originalists that say, you know what's happened in the past 234 years is some of these decisions, a lot of them have subverted the will of the, and the intent of the founders. And pragmatists come along and then say, duh, exactly. Because

what we would like to decide law based on is modern times and the context in which we live, and the impact on our society as it is today. And those two things pushing and pulling is, as we've, you know, it's always been this way, but every, I think, generation when they see the big decisions coming down, pay more attention to it. So right now, because of Roe, obviously, everyone is paying a lot of attention to this push and pull of originalists versus pragmatists. But also, pragmatizing. But also the tension between originalists and people who follow starry decisis, too. There's a big tension between that as well. And I was reading about originalism, Chuck, and Clarence Thomas is like a hardcore died in the wool originalist, like

literally what the founders literally meant when they wrote the Constitution is law and anything beyond that should not be law. And he, if you read it, he kind of makes a pretty good case. It makes sense to an extent. But then you stop and realize what he's talking about is a civil law society, a law where you have a founding document of laws and rules and regulations. And it's super specific. And it covers as many bases as it possibly can. And then the judiciary has a very limited role in shaping those laws. You come before a judge and they say, oh, did you violate this article? Yes, you did. Yes, you're guilty. Or no, you didn't. No, you're not guilty. That's the role of judges. And that sounds like Clarence Thomas is like

dream job, but he's in the wrong kind of society because we have a civil law society where judges are dependent upon to interpret the law correctly and sensibly in a way that applies to the society at large. And that really is in tension with originalism, big time. Yeah. And I'm, you know, no shock. I'm a pragmatist. And I don't think you should like just ditch the Constitution. But I think it's crazy to think about in 150 years in the future where we're flying around and we look like Buck Rogers in the 21st century, I guess, that'll be 22nd century. I can't wait. I'm going to be first in line to get that haircut too once the silver jumpsuits come out. But it's crazy to me to think about going back to a time when they

spelled the word time with a Y, you know, and say like, no, we still have to go back, you know, four or five, 600 years to what these, I mean, the world just changes so much. I just, it's crazy to me that the law shouldn't change with it. And the law has changed with it. I'm not, you know, saying that it hasn't, but I don't know. It's a little frustrating sometimes. I'm kind of in between. I'm a stare decisitist, I guess you'd say, because I feel like pragmatism can be a little whiplashy. The law can change a little too much, which we've seen, you know, where one administration comes in and makes a bunch of rules, and then the next administration comes in and changes them. And it's really tough to say like run a business like that or to live

your life like that. But with stare decisis, it's veneration in respect to tradition and custom and stability. But there's, again, there's that ability to change, to be pragmatic when it's called for. Again, it's really middle of the road and it's right up my alley. Right up your alley. So let's get to the confusing part. I mentioned earlier that there would be an eventual breakdown of kind of how courts bind to one another. And when we're talking about binding authority, that basically means decisions that a lower court must follow from an upper court in its jurisdiction. And it goes a little something like this. State courts are only bound by higher state courts in their own state. They're not bound

by federal courts, except for the Supreme Court, again, the ultimate authority. They can strike down state court decisions as unconstitutional. And then you've got the whole, and I want to say mess, it's not a mess if you really understand it, but the whole sort of plate of spaghetti, which is the federal court system. Which is... Take it away. Man, I was hoping you're going to take it all the way home. The federal court system is based on those circuits that were established all the way back in the 12th century. But rather than traveling around, I think judges kind of have home courts. But the point is these courts are related to one

another. And there's 94 districts. No, there's 12 districts with 94 district courts. It's very confusing. 12 regional circuits. Okay, thank you. With 94 district courts spread out among them, right? Yeah, each regional court has one appellate court. And then there's a court of appeals for the federal circuit. It has nationwide jurisdiction over certain cases. It gets really confusing. Yeah, it really does. Because you start out in district court, you end up in, I guess, circuit court, maybe, and then you end up in appellate court. I may have added a step there. I like to do stuff like that. And then eventually you end up at the Supreme Court, which is the final arbiter of the law of the land.

But the Supreme Court tries not to overrule state law because states have their own Supreme Courts and they tend to be respected. The point is in federal court, in a district, if you have a ruling made in a district appellate court, it will apply to all the courts in that district. But in the next district over, it will have no impact whatsoever. Yeah. And you don't, as a regular citizen, if you ever are bouncing through the, bouncing away up the court system, you don't have to really understand it because you're going to have an attorney that says, well, now you go see this lady. All right. Well, now you go see this guy. And you just go, oh, okay. Right. And they're like, and by the way,

you owe us another check. Or you could just come listen to this on repeat several times. Yeah. Good luck with that. Right. So the other, so the thing is, is like, this didn't land with me until like the second or third time I really kind of read over this, but you have to follow precedent. If your state Supreme Court rules on something, if you're a lower court and that same similar case comes to you, you have to follow what the Supreme Court ruled on that other case that established precedent. You have to. That's binding. That's what that's called. But there are other times where if you're a lawyer or if you're a judge and you're kind of examining case law, there's other kinds of non-binding types of judgments

or precedents that you can use to be persuaded one way or another to prove your case. But it's not like incumbent upon you to actually follow those. Yeah. That's a good way to say it. One of those is what's called persuasive precedents. It is non-binding. And that, you know, that means exactly what you said. There's no real precedent, but maybe the decision is very useful. Maybe it's a very similar kind of case. And maybe it's a principle that you can look at at least when you do make your decision. Another one is called an unpublished when they say it's not for publication, their opinion. And this is basically like, it doesn't mean it's literally not, they just like wad it up and throw it away at the end.

It just means, hey, this is a, like you see this most times in state trial court. Like, this is just some run of the mill state trial case. The judge doesn't like, hey, this isn't going to affect law or precedent moving forward. I don't want, if I mess up one tiny little thing, I don't want people to refer back to this and say, oh, but this judge said that it's kind of like, it's sort of the, let's go to lunch, let's get to lunch already and just get through this trial. And it's not really that important. So they just say it's not for publication. Yeah. And I guess it's up to the judge to decide that or not. I guess so. I wasn't sure about that.

Like you said, though, it's not like they just throw it away. It is actually published. It's just not, it means that this is a non-binding decision. Yeah. It's like, don't come looking at me. Right. Right. I'm just going to TGI Fridays. Right. Okay. You want to take a break and then come back and talk about some overruled precedents? Sure. Let's do it. Hey, I'm Lance Bass host of the new iHeart podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough,

or you're at the end of the road. Ah, okay. I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. This, I promise you. Oh God. Seriously, I swear. And you won't have to send an SOS because I'll be there for you. Oh man. And so my husband, Michael.

Um, hey, that's me. Yep. We know that, Michael. And a different hot, sexy teen crush boy bander each week to guide you through life step by step. Oh, not another one. Uh-huh. Kids, relationships, life in general can get messy. You may be thinking, this is the story of my life. Oh, just stop now. If so, tell everybody, everybody about my new podcast and make sure to listen.

So we'll never, ever have to say bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts. Okay, Chuck, it seems like they, the Supreme Court overruled precedents every couple of days these days, but I guess they started out fairly slow. Um, in total, they have overruled their own judgment. So remember, if you look at the Supreme Court as a single body made up of all, you know, rotating or incoming and outgoing members, but it's still the same thing.

That's a great definition of the Supreme Court. Like everyone knows what the Supreme Court is, and I just managed to make it confusing. Anyway, the Supreme Court has overruled itself over 230 times. Yeah. In, in the, it's lifetime and it started in 1810. Right. But like you said, it didn't happen a lot. I think in 1895 with Pollock v.

Farmers and Loan Trust Company, that is when things really got rolling and the Supreme Court started overturning itself more and more because it's happened. I mean, that wasn't that long ago and it's happened how many times since then? Like 220-ish, 210? Well, it happened, yeah, it only happened 26 times in the entire 19th century from 1810 to 1899. So everything since then, yeah, has been, you know, they've been going gangbusters. And that, that Pollock v. Farmers, Loan and Trust had to do with the income tax. And that's actually a good example of Congress coming in and saying,

oh, you overruled our ability to have an income tax. Here's the 16th amendment down your throat. Right. So the thing is, is like little by little, kind of like the little train that could going up the hill and starting to kind of gain steam and gain speed. If you look at the Supreme Court's overrulings or overturned precedents, if you like graft them on like a spectrum of time, the present and, you know, the recent past would have a lot of dots on it.

And some people say that's evidence that the Supreme Court has become much more activist and politicized over the years. But then other people say, well, I mean, it just makes sense that further back in time, they had much fewer rulings to overturn. Right. They're basically starting from scratch. Now there's so many rulings to consider and deliberate on them. Yeah.

Of course, there's going to be more overturned because there's more precedents to be overturned. Yeah. I think in middle of the rotor, like myself would say, it's probably a bit of both. Yeah, I agreed. You know, a starry decisisist like us. Here are some very famous examples and truly important, you know, because I mean, I think overall, overturning precedent as a starry decisis isn't the greatest thing, but boy, it sure has been the right thing in a lot of cases.

Yeah. And of course, that's, it's all subjective, but that's my opinion. Brown v. Board is one of the big ones. In 1896, Plessy v. Ferguson, the U.S. Supreme Court said separate but equal is how we should go forward. We can segregate things. We can make black kids go to black schools and white kids go to white schools. And it doesn't protect or I'm sorry, it doesn't violate the equal protection clause

of the 14th Amendment. As long as long as things are equal and these schools have the same school supplies and they're all, they're all the same. It's all good. And that was later overturned. Of course, the lower courts sided with it, but the N.D., the NAACP would eventually appeal this to the Supreme Court with Brown v. Board. And this is one of those situations where like new, new data and new studies kind of came into

play that had happened since that original Plessy v. Ferguson ruling and Chief Justice Earl Warren said, hey, look, we're looking at these studies now that say, yeah, these schools may be equal on paper, but inherently they are not equal if they are segregated. And that will really has a big psychological component to a young black student, even if they have the same textbooks and school supplies, just the fact that they have to go to a different school is harmful to them. Right, and so that clearly violates the 14th Amendment to equal protection under the law. And that made Brown v. Board of Education one of the most celebrated, not just court cases,

but one of the most celebrated overturnings of a legal precedent in American history. For sure. Pretty much everybody can get behind Brown v. Board of Education, you know? There's probably a few holdouts. There are. I was researching it and it's surprising. It's not everybody you would think it's kind of like people on both sides are like it was kind of better before.

But for the most part, society's like, no, no, even if it was rough at first, like it was a step we needed to take as a society so we could evolve and stop living separately because that's ridiculous. What about Payne v. Tennessee? This one I thought was surprising. It kind of flies under the radar if you're not paying attention to law stuff. But it used to be the Supreme Court upheld this idea that you could not have a victim impact statement at sentencing because they said that it violated the 8th Amendment's

protection against cruel and unusual punishment because this emotionally charged, you know, atmosphere right before a person's sentence really increases the risk that they're going to get the death penalty. And in a 1990, late 80s case, a guy named Purvis Payne who'd murdered a woman and her two-year-old daughter, the woman's mother had given a victim impact statement. And apparently the Supreme Court at the time in 1991 was made up with, I think, enough liberal justices that they were like, no, you should be able to have victim impact statements. And Thurgood Marshall, who was one of the most liberal justices in Supreme Court history,

wrote a dissent and a critical dissent saying like, hey, you're taking starry decisis way too lightly. Like this is tradition. This is custom. And it's like reasonable that, yeah, it increases the risk that somebody's going to be put to death and you guys really dropped the ball. But now the Supreme Court overturned it. So to this day, you're allowed to have victim impact statements at sentencing in the U.S.

Yeah, that's, Roper versus Simmons was another. That was a case where they basically, where like kind of things had changed since the original decision in 1989, Stanford versus Kentucky, they found that it was unconstitutional to sentence a minor, I'm sorry, in 2005, they found it was unconstitutional to sentence a minor to death, which overturned the 1989 decision, Stanford versus Kentucky. And they basically said, we've evolved since then. And in 1989, most people thought it was okay to put a 16-year-old to death. But now things have changed and we don't really feel that way as a society.

Since 1989. The year I graduated high school, I could have been put to death in high school. Yeah, you could have. It's a good thing you didn't get in trouble, Chuck. I was a good kid. But they cited state legislature and decisions there that outlawed it and they even looked at like sort of what was going on around the world as far as that kind of thing goes. There's another really consequential case that came before the Supreme Court and

had to do with their emergency docket, which we'll talk about a little bit about later. But in some cases where the time is of the essence, the Supreme Court will hear really important emergency cases on very short notice, will deliberate on it over a very short period of time and issue a ruling that does not have anything to do with anything else except for that one case, ideally. But Bush versus Gore is a good example of how that's not the case because this is one of those emergency cases that they heard and Chuck, I think we need to do an entire episode on the 2000 election because it was so consequential to the United States.

And also it's just super interesting too. But the upshot of it is that there was a really important quote that came out of it that said, our consideration, the Supreme Court is saying this, our consideration is limited to the present circumstances, comma, for the problem of equal protection and election processes generally presents many complexities. And some people say the fact that they said that their consideration is limited just to the present circumstances means that it's not precedence. Other people say, yeah, but that second part about how all election processes are different,

they're actually saying like, don't just apply this rotally to it. So it is a precedent and it's been cited a bunch of times since then. But even though it's a big controversy about whether those kinds of rulings should be included at all in precedence. Yeah, and that's sort of the, it's not a slippery slope. It's just sort of the system we have when there isn't a law about precedent. It's just sort of like, you know, we'll try and figure it out case by case. I laughed because slippery slope came out of the Supreme Court too.

I think it was Souter, right? Oh, really? Yeah, I don't remember what case it was. That term? Yeah, the slippery slope came out of the Supreme Court. Did not know that. That's a good fact. That's why I laughed, because I'm the biggest nerd on the planet.

That is pretty funny. And now, you know, we should close with Roe. We did a full episode on just the ins and outs of Roe V Wade not too long ago, but did that come out right after the decision had been rendered, I think? Did what come out? Or right before our podcast episode? Right after, like a week after. Yeah, we were very timely and topical.

Yeah. Don't break your arm by hitting yourself on the back. I couldn't remember if it was before or after, but at any rate, we should touch on it here at least because that is obviously the most recent really super impactful time when a super impactful time when the some members of the Supreme Court said, sorry, sorry to size this, but even though we might have even said in our confirmation that this was a settled ball, we're going to reverse on that now. Yeah.

And the reason that Roe was upheld for so long, and we talked about this in our episode, that it was really roundly considered to be based on shaky legal foundation, but it was upheld time and time again, because it had become reliant, people had come to rely on it. So that reliance factor kept it from being overturned, even though a lot of justices considered it like, this is not the best ruling we've ever made, but then with Dobbs versus Jackson, Women's Health Organization, the ruling from, was it 2022? Yeah, that overturned, man, it's been a heck of a year, that overturned Roe, they basically said like, no, we're just going to go ahead and say like, this is not, this argument was

totally fallacious, it was a bad argument, but also we're going to go one step further and apply our originalism to it and say, the Constitution doesn't say anything about abortions, and if you're going to apply the 14th Amendment to it, which is what that shaky legal reasoning was for Roe, that you couldn't deprive a woman of her privacy, aka liberty, that was guaranteed through the 14th Amendment, if we're going to apply the 14th Amendment, let's go back and talk about what things were like in 1868 and how people understood the law in 1868, and they would not have been okay with abortion, because three quarters of states already had abortion outlawed on the books, ipso facto, abortion has no constitutional protections. But again, they really went to the

other extreme, which in this case was the far right, in saying like, there's nothing in the Constitution about abortion, and no one had ever said it was in the Constitution, or that the Constitution explicitly protected women's rights to choose about reproductive health. What they were saying is, the judges kind of determined over time that this was worthwhile, and this was what society needed, and they ruled on it. So it was a case of pragmatism, frankly, and originalism, which is where we're at now, and then eventually we may get to that middle of the road story decisiveness. Who knows? I don't know. No one knows. Right. And it was also a case, though, where if you're going to open up that can of worms with the 14th Amendment, all of a sudden,

you're looking at other decisions, decided on that same rationale, like same sex marriage, and interracial marriage, and same sex sex, also called just sex, depending on who you are. Alito said, you know, but, you know, it doesn't apply to that stuff. It just applies to this, and that's, I think a lot of people worry like, well, yeah, but the can of worms is now open, and I think immediately after Clarence Thomas even said like, maybe we should go back and look at these other cases. Yeah, totally. And that's the scary thing about it, because it established a precedent, and a big one, too, because of that reasoning. But then again, a Supreme Court can come with new sitting judges down the line and be like, this was terrible reasoning. We don't

agree with originalism. We're going to overturn dobs. Who knows? I suspect that it's going to kind of ping-pong back and forth for a while. Who knows? There's also a bit here that I move, your honor, that we cover this in a short stuff. Overruled this whole. Oh, no. There's the whole matter of the shadow docket, which I think would make for a good short stuff. Yeah, that had to do with that Bush versus Gore 2000 election thing. It's like an emergency thing that they probably are using a little flagrantly these days, but I agree. I think that's a good short stuff. It's sustained after all. Okay, thank you. You got anything else about legal precedents? No, I don't want to talk about the law for a while, so maybe we'll bump shadow docket out to

summer 23. Okay, that sounds good. We did it, Chuck. We made it through legal precedents. If you want to know more about legal precedents, you can research starry decisis, originalism, pragmatism, all that stuff on your favorite search engine. Since I said that and Chuck said, woohoo, it's time for Listener Mail. I'm going to call this just one email about our sitcoms, two-parter. We got a lot of great feedback. People really enjoyed those episodes, I think, which is always fun. We did miss a couple of things before I read this. I don't know why. I guess I said that Rota was a spinoff of all in the family. No, I did. Oh, you did? Okay. I thought it might have been me. I knew it was Mary Tyler Moore. I don't know why I didn't speak up then.

If I could take one thing back in this entire podcast's history, it would be that because so many people wrote in to say that. And some also, most were very nice, but I want to give you a piece of guidance just as a friend here, everybody. If you send an email and the subject line contains more than one question mark, it means you're being hostile and you may want to second guess sending that email because it makes you look like a huge jerk. You mean that the subject line is who does your research for question marks? Maybe. Also, the Simpsons has a little Maggie. There are not four Simpsons. I really goofed that one. I forget about Maggie. I love babies, but Maggie didn't do a lot on the show, so I forgot all about her. Big apologies to Maggie

Simpson. Yeah, same here. I didn't catch that either. And then also, a lot of people, at least as many who wrote in about Rota being a spinoff of Mary Tyler Moore, wrote in about Roseanne and the two Beckys pulling a Darren switch, which I just walked right past. I was never a big Roseanne fan. I never watched it, but I didn't either. There were a lot of Roseanne watchers. I'm assuming the original one. Right, but that one falls under not so much a correction as a how could you not include this. And we get a lot of those, especially with stuff like this, like how could you not talk about everybody loves Raymond? How could you not talk about my favorite Joe? Yeah, it's kind of like we put together a list of the 100 top sitcoms of all time in a two episode format and just let her

rip because yeah, it was inevitable. I'm actually surprised we didn't get more stuff. Yeah. And it's really interesting that almost everybody wrote in to talk about Roseanne, us leaving out Roseanne. I know. I didn't watch that show. Yeah, just didn't do it. Sorry, everybody. Hopefully, we didn't taint your experience. But here's a fun email from Laura Lampert that summed up her admiration of this episode. Hey, guys, this is a complaint that these two episodes were too engaging and entertaining. I really needed to sleep, but it wasn't happening. So I put my podcast cue on to play starting with these two episodes because I really didn't find the subject that interesting. The thought was that listening to you guys drone

on about a dull topic to me would send me off to the land of Nod. But that didn't happen. Here I am at 3am sitting in front of my computer to find out about the universe that was mentioned. I guess the Tommy, what's it called, universe? Tommy Westfall. Tommy Westfall universe. As wide awake as I was two hours ago, maybe you consider some dull or less interesting topics, guys, and then just leave them that way. No jokes, no side notes, no tangents, just drone on. You can label it stuff you should sleep by. And that is Laura Lampert. That's a good idea. It's a really good idea. We could just kind of talk like this the whole time. That's right, about very boring things. Yeah, like legal precedents.

We should have, that could have been our debut episode. We have to re-record it, Chuck. We have to go back and give it another shot. Just play it at half speed. There you go. There you go. That's great advice to Laura Lampert. Great name. You can tell it's a great name because I remembered it and didn't have to ask Chuck, which is not to say that when I don't remember your name, it means you don't have a great name. It's just not quite as memorable. How about that? Sure. Well, since I just dug myself out of that hole, everybody, that's the end of Listener Mail. And if you want to get in touch with us like Laura Lampert, did you can send us an email too to StuffPodcast.iHeartRadio.com. Stuff you should know is a production of iHeart Radio. For more

podcasts, my heart radio, visit the iHeart Radio app, Apple podcasts, or wherever you listen to your favorite shows. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help and a different hot sexy teen crush boy bander each week to guide you through life. Tell everybody, yeah, everybody about my new podcast and make sure to listen so we'll never ever have to say bye bye bye. Listen to Frosted Tips with Lance Bass on the iHeart Radio app, Apple podcasts, or wherever you listen to podcasts.