Start watching for a murmur in the popular culture that judges should be "independent" of stare decisis - the common law doctrine that lower courts are bound by the precedents established by their reviewing courts. There probably will be cosmopolitan observations that stare decisis is parochial to the American legal system, that the doctrine doesn't always apply, and that there is a proud tradition of judicial rebels standing up for the Right as They See It. All of which are found in this FindLaw essay. Lest you wonder why this issue should surface now, note the conclusion:

I'll also note, finally, that questions of vertical stare decisis are likely to become more prominent as the Supreme Court swings further to the right, assuming that the composition of the lower courts does not change with equal speed. If the Bush administration succeeds in appointing a bevy of extremely right-wing justices to the Court - Scalia junior and Thomas redux - many of us may hope that Judges Reinhardt and Pregerson begin to take a stronger stand.

All of which leads one to say "huh?" and "She can't be serious." Is the author really calling for lower courts to ignore stare decisis when it feels good? Would she be as sanguine about the concept if the lower court judge was, say, Kozinski, and the decision involved, say, abortion? Or is this one of those provocative doctrines that applies only to some areas of law and not others? Would she really be willing to trade Three-strikes for the Right to Privacy?

Odd little essay, actually. As light as a feather, but somehow I think we are going to be hearing more scholarly observations about the benefits of "judicial independence" as President Bush appoints more judges.

[Thanks, Roger Ho.]