Quote:
Originally posted by Mmmm, Burger (C.J.)
But question the precedential value of a 7-justice decision (would you be comfortable standing on the basis of case decided by 7, if Thomas and Scalia had been recused?)
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Lower courts are not entitled to question the precedential value of a superior court's decision, regardless of how it was obtained. (An exception would be a federal district court, looking at an intermediate state court of appeal's decision on a matter of state law, since doubting its precedential value is part of its job of ascertaining how the state's Supreme Court would determine the issue --- but that's not really an inferior court.)
Given that Scalia has said publicly that overturning RvW would be less disruptive to American life than leaving it intact, it seems
stare decisis is pretty much a matter of whether today's majority is the same as yesterday's majority. I can't think of a con law decision that would be more disruptive to settled law to overturn, except mebbe
Buckeye Boiler.
So I would be comfortable relying on a 4-3 decision until it gets appealed to the SCOTUS, in which case all bets are off for
stare decisis anyway.
