There has been a bit of discussion, of late, about what should determine the relative weight of a given piece of precedent (e.g., the number of other cases relying on it, the area of law to which it pertains, the soundness of the decision as an initia…

Blog Coverage of the Alito Nomination: ACSblog has this post on his life as a litigator. Think Progress offers this perspective with Alito’s views on women’s right, civil rights and other issues. Election Law Blog has this post on why…

Different precedents may have different precedential values – in part because of the factors outlined above – but don’t these factors describe how existing concepts of stare decisis have in fact been applied, and are thus is not anything new? (Other than a welcome analysis of how stare decisis operates?)

If this is so, is it possible that Luttig was merely trying to poke fun at the SCOTUS by claiming that Casey rests upon “super stare decisis”? i.e. Luttig: Casey’s reasoning cannot be defended by traditional notions of stare decisis, therefore Casey must rest upon a new form of stare decisis that the SCOTUS has invented for abortion cases – “super stare decisis” – and I, as a lower court judge, am bound to apply this invention to abortion cases, even if I think it is silly.

The fact that most commentators flitting with this label do not think that Casey involves “super stare decisis” (as a description of existing precedential practice) lends credence to the thought that Luttig, by creating a label for a new precedential practice, was attempting to ridicule Casey’s reasoning.