This week, the U.S. Supreme Court recently heard oral argument in the ABC vs Aereo case, concerning whether a company can broad TV signals to customers over the internet without paying licensing fees. A relevant precedent is the CableVision case where the Second Circuit Court of Appeals ruled that CableVision could operate a remote DVR service without paying additional licensing fees. Now since this was only an Appeals Court decision, it's not an absolutely binding precedent that the Supreme Court has to follow. But Justice Kennedy still asked one of the lawyers (arguing in an amicus brief against Aereo) this hypothetical question:
How do you want us to deal with CableVision -- the CableVision case in the Second Circuit. Again assume it's binding precedent. Just assume that.
Deputy Solicitor General Malcolm Stewart said this in response:
My answer would be ... that the reasoning of Cablevision, if you really adhere to [the reasoning in the case] ... then it's hard to see how you could rule in favor of our position here. But as far as the bottom line outcome of Cablevision is concerned, you could accept [our] position and still say CableVision was decided the correct way.
This seems like an odd argument to me. The Supreme Court follows the doctrine of stare decisis, or "let the decision stand". It means that by default, the Court has to respect the precedent of its past decisions. This doctrine isn't absolute, however, the Court can and has made decision in violation of stare decisis when it saw a sufficiently compelling reason to overturn past precedent.
So I can understand if Stewart was just arguing that stare decisis should be violated in this case and that the reasoning in the Cablevision case ought to be overturned. But in addition to that, he's saying that as a consolation, the new reasoning that the court would be adopting would still have decided the Cablevision case in the same way. How is that in any way a consolation? Is it somehow considered a lesser violation of stare decisis if the outcome that a case would have had is still preserved, even if the reasoning which yields that outcome is no longer recognized?