Yes. And we have gone so far down that wretched road that I don't see how we turn around and backtrack, what with stare decisis and all.
Use of stare decisis to defend an erroneous path just compounds judicial error.
See Scalia's dissection of SCOTUS in Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Surely, if "[t]he Court's power lies . . . in its legitimacy, a product of substance and perception," ante at 865, the "substance" part of the equation demands that plain error be acknowledged and eliminated. ...Not to say the path of deliberately subverting the constitution will be reversed (it's in the courts interest to claim more power, and there is no practical downside to over-reach), but if it ever decides to come clean, reversing can take many forms, from frank and honest admission of past error and sudden return to correct principles, or some incremental crawl-back. The court has complete control over its own fealty to the constitution and fundamental honesty.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 Imperial Judiciary lives.