Posted on 06/28/2018 9:14:33 AM PDT by NewJerseyJoe
The Janus ruling was earth-shaking (in a hugely positive way). Way past time for out-of-control government unions (aka Democrat money-laundering machines) to be taken down at least one peg. But I thought the more important takeaway was SCOTUS putting in writing the idea that precedent is insufficient grounds for preserving bad law that conflicts with fundamental constitutional tenets.
"Fundamental free speech rights are at stake...and [prior precedent] Abood [v. Detroit Bd of Ed.] was poorly reasoned." - Justice Alito
It's really bad news for the lefties, who always scream about "settled law" and stare decisis. This ruling has huge implications for the future.
Uh, actually I am talking actual practice, as in the actual practice of law.
No more umbras and penumbras either !
“Can wicked rulers be allied with You,
those who frame injustice by statute?”
—Psalm 94:20
The demonic con of passing evil laws and calling them “settled” is ancient.
"[W]hen convinced of former error, this Court has never felt constrained to follow precedent. ... this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions." Smith v. Allwright, 321 U.S. 649, 665 (1944).
The Supreme Court can not be bound by precedent since it is the highest court, and therefore ultimately sets precedent.
Ok, the way it is described is thus: the high court IS bound by precedent, but precedent can be overruled if found to be in error.
It is technically not correct to say the court is not bound by precedent because they themselves say that they are, BUT to the extent that they can change and overrule precedent as a practical matter they are not bound by it. But stability of the law demands that lower courts follow the law as it is stated by the high court. If the court were to say that they dont respect precedent then every lower court would just take whatever action they want claiming that the high court never set a precedent on what action to take.
So, while every court is obligated to follow precedent it obviously can be changed although the courts do so as rarely as,possible as to not disturb
The orderly process of handling cases.
What about the opinion in which Kennedy provided the crucial vote in Oberfell v. Hodges?
Roger that
Roe is built on the fictional "penumbra" of a non-existent "right to privacy." No such thing even exists in the Constitution, so any precedent derived from it has no legal anchor. Brown rests on the nonsensical thesis that "separate is inherently unequal." That is clearly unsupportable by logic, since in every sense of the word, two different things can be equal even though they differ in virtually every aspect.
Obergfell was argued as a Constitutional issue centering around the Equal Protection Clause and the Due Process Clause of the 14th Amendment. While it can certainly be argued that "equal protection" of an individual's rights does NOT include the right to marry, at least the root has some claim to Constitutional authority, and can be argued within the bounds of reason. Unlike the other two cases.
It's not that I wouldn't like to see Obergfell overturned; it's just that I don't think this is the lever to do it.
Show me where in the extensive proceedings that accompanied the enactment of the 14th Amendment, there is any constitutional “intent” to establish a right of homosexual marriage.
That's the argument. I don't buy it, but at least it's better than inventing a "penumbra" or stating that 4 + 1 is somehow unequal to 2 + 3.
But what if “equal protection” traces back to the 14th Amendment?
Then the Court is entitled to refine the scope ofthat term, including broadening it to encompass faux marriage. Which is exactly what the Roberts Court did.
I think the key to destroying Obergfell lies in strengthening the EXPLICIT 1st Amendment “Free Exercise” clause to protect the right of religious people to deny complicity in what their religion considers an abominable, sinful institution. I don’t have to rent to queers. I don’t have to bake their cake, take their pictures, or recognize their phony “marriage.” I can’t be forced to participate in their pathology.
Then, you were misled. Stare decisis is applicable to all court cases, regardless of the court.
Courts attempt to maintain and develop previous standings. If that previous standing was bogus, then it should be ignored and replaced with sounder reasoning.
Yep. See Scalia's scathing dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992).
The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the "central holding." It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137 (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts. ...The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve.
The way liberals interpret Marbury v. Madison, legislating from the bench is precisely what the courts are supposed to do. "Say what the law is."
There is none. This is judge-made law. This is tyranny, a usurpation of authority.
That ruling creating sodomite marriage was lawless to the core. Sodomites deserve death, not honor. Marriage was estabished by God for one man and one woman. Jesus reminded the Pharisees in Matthew 19:3-6 what God intended from the beginning. No scripture documents God ever changing this covenant.
The Bible condemns sodomite behavior, never praises it, punishing it with death (Leviticus 20:13). And Romans 1 (and Jude) explains that this behavior is worthy of death, Sodom and Gomorrah being an example for us even today.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.