An example of judicial review is set forth in Texasv.Johnson, 491 U.S. 397 (1989). InJohnson, the US Supreme Court ruled that burning a flag is protected self-expression under the First Amendment to the US Constitution. Thus the Court reversed the defendant’s conviction under a Texas statute that criminalized the desecration of a venerated object. Note how Johnsonnot only invalidatesa state statute as being inferior to the US Constitution but also changesthe US Constitution by adding flag burning to the First Amendment’s protection of speech.
Stare Decisis andPrecedent
Cases are diverse, and case law is not really law until the judge rules on the case, so there must be a way to ensure case law’s predictability. It would not be fair to punish someone for conduct that is not yet illegal. Thus judges adhere to a policy calledstare decisis. Stare decisis is derived from English common law and compels judges to follow rulings in previous cases. A previous case is called precedent. Once judges have issued a ruling on a particular case, the public can be assured that the resulting precedent will continue to be followed by other judges. Stare decisis is not absolute; judges can deviate from it to update the law to conform to society’s modern expectations.
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