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Lawyers have been bamboozled. Ask yourself this hypothetical. If the Supreme Court said that 1+2=4 should all lawyers insist that their grocer accept that arithmetic? And yet if the Supreme Court had said that, by the rules they think they must obey judges would enforce 1+2=4 if anyone presented in court 1+2=3.

Reread the Constitution – and the judicial oath or affirmation (ignoring the unconstitutional “so help me God” part). You will find that the oath is to the Constitution, not the Supreme Court. Abraham Lincoln, who did not attend law school, was not so bamboozled and he expressed his belief as:

We think its [Supreme Court] decisions on Constitutional questions, when fully settled, should control … but when, as it is true we find it wanting … it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country[.]¹

Stare decisis should only apply when repeatedly the Supreme Court has decided an ambiguity or unanticipated situation (telephone re 4th amendment) in a way that (lawyers and) the populace accept as valid. Accepting a onesie, especially when clearly wrong (e.g., Trump v. Colorado), is jumping the gun.

A former judge that I presented these thoughts to said (and correctly) that a judge should always start by (gasp) actually reading the law. Alas the courts of Michigan no longer read their own law, or the Constitution, or bother with correct arithmetic as is shown at the My Case section of this Forum.

The former judge correctly to believes that a judge that bucks the Supreme Court based on his/her own understanding (as the Framers intended) of the Constitution is faced with some difficulties. If they decide based on the Constitution (ignoring Supreme Court precedent) and the losing party acquiesces (or gives up due to financial and time or other constraints or intentionally to avoid any possibility the Supreme Court will self-correct) then the case doesn’t get to the Supreme Court so they are none the wiser that they erred. But, very unfortunately, if a judge decides with the Supreme Court stare decisis and the party in the right, now defeated by stare decisis has no more money or time or whatever then the judge has not sided with Justice (AKA the judge's job) and again the Supreme Court is none the wiser. To my way of thinking, since both of those can fail Justice, the appeal court’s obligation should probably be a Certified Question. It looks to me like a single judge could do the write up and get the local clerk to sign and submit it. At worst it would only notify the Supreme Court that the real case may follow but at best it could get the error corrected quickly (assuming honest, high integrity Justices). If stare decisis makes a little guy in the right a looser perhaps the local court should also direct the little guy to a pro bono lawyer to be certain that the case does reach the SC? Of course the SC could still not grant certiorari but, such as in my case (citizen of a state vs their own State), the SC must (presumably) take “original Jurisdiction” per Article 3, Section 2, 2. (And not superseded by the ill-advised Amendment XI and shouldn’t be by the off the rails SC extension of that.)

Sir William Blackstone, Esq., in his Commentaries on the Laws of England (V3), regarded the issue this way:

[F]or the law will not suppose a possibility of bias or favor in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such misbehavior would draw down a heavy censure from those, to whom the judge is accountable for his conduct.

When "impartial justice" does not comport with stare decisis a Michigan judge is accountable in Michigan to higher courts then to the Governor and Legislature (and ultimately People) and a Federal Judge or Justice is accountable to higher courts and the Supreme Court is accountable to Congress (and ultimately the People). The catch, of course, is that those higher courts, etc., and ultimately the People have to be paying attention and holding judges and Justices accountable, preferably with "heavy censure."

¹Or the full Abraham Lincoln “quote” from a Speech at Springfield, Illinois June 26, 1857 regarding the Dred Scott decision:

We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country…

The former judge referred to above replied "I can certainly imagine a system in which the lower federal courts, are free to disregard Supreme Court decisions with which they disagree, but that isn’t the system we have. Our system promotes stability and ensures that only the Supreme Court can overrule its own precedent. Although this system obviously isn't perfect, it served us fairly well for over 200 years."

The catch, to my way of thinking, is that it worked for over 200 years because generally judges were honest, high integrity people. Unfortunately I don't see that currently being the case, they seem more (in taking their cue from the U.S. Supreme Court) interested in demonstrating their POWER than in "impartial justice." Also, I believe that the former judge would not readily be able to cite (Constitutionally, not Supreme Court) justification for what he identifies as "the system we have."