These two decisions prompted outrage not because either was a radical departure from precedent —neither was—but because they called attention to just how many grains of precedent had been piled atop the terms "public use" and "interstate commerce," reaching so far from the common-sense meanings of those terms as to seem preposterous if one is only eyeballing the heap, rather than attending to the process.
Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they're engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That's not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public's sense that they understand the most fundamental rules by which they're governed, it's a sign that jurists need to be willing to step back and see the heap.
-- A Heap of Precedents: Slippery slopes, stare decisis, and popular opinion
This article points to a reason why Kelo (takings) and Raich (medicinal marijuana) raised so many hackles across the political divide. Some people noted that the result shouldn't have surprised anyone, since they fit snuggly in past precedent. I felt this sorta missed an important point: none really went this far, so strongly gave the gov't discretion.
An important point, I think, especially as we look on while a new justice is appointed. The "formalism" proponents on the Court like strict rules. Justice O'Connor and Breyer are much more flexible; maybe too much at times. Nonethless, sometimes rules lead one to miss the forest for the trees. Sometimes a particular application might be formally reasonable, but practically extreme. The public in particular feels this way, but so does many in the legal profession (suggested by lawyers who felt one or both of the rulings crossed some line or generally favor O/B's style).
This sense of perspective is a good thing to have in the courts, at least one view among many. It also sometimes is important to the the ultimate protection of the spirit of a law or constitutional principle. Sometimes form over substance misses the point, even if crossing the line is sometimes done in a fog.
Interesting article.