Posted on 10/30/2005 3:01:37 PM PST by freedomdefender
[S]ocial conservatives face a problem: a new theory of "superprecedents" ...
The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents - that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.
In response, Judge Roberts embraced the traditional doctrine of "stare decisis" - or, "let the decision stand" - and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.
...the idea of superprecedents is more powerful than a simple affirmation of stare decisis. An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.
Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."
Before the Roberts confirmation hearings, Mr. Specter talked informally to several law professors, including this writer, who mentioned the theory of super-stare decisis, noting that Judge Luttig thought it was important that Roe had been repeatedly reaffirmed by different Supreme Courts, composed of justices appointed by presidents from different parties and confirmed by Senates controlled at times by Democrats and Republicans.
And Mr. Specter adopted this theory.
(Excerpt) Read more at nytimes.com ...
WHY ARE CONSERVATIVES SO BIG ON THIS LUTTIG GUY? SOUNDS LIKE HE'LL UPHOLD A LOUSY PRECEDENT LIKE ROE. ??
Don't get fooled by the NYT. Luttig is a solid vote on Roe and for all the right reasons.
The comment is grossly taken out of context.
1) Luttig is writing as a Circuit Court Judge, bound to the opinions of the Supreme Court.
2) In context, it appears that he is being sarcastic in dubbing it as a "super-prescedent"
This is being discussed over at RedState right now.
Don't get too excited. We will be stuck with O'Conner until January.
We know this how?
It doesn't sound good, but I'd like to know mor--which I know isn't likely at this point. There was another earlier post that made this same argument.
The thing is, Luttig was not a Supreme Court justice when he made that decision. As a lower court judge, he hasn't any choice but to follow Supreme Court decisions.
I must say, there seems to me to be an additional point at issue. Roe v. Wade does not seem to rule out putting restrictions on late term abortions (it's unclear on this point, although liberal judges have pretended that it gives an unlimited abortion license). Neither does Casey. So, it seems to me that he could have reasonable found that "partial birth abortions" are a special case. Many physicians have testified, for instance, that partial birth abortion is never necessary to save the life of the mother.
I'd like to know more. But I don't know how likely that is, in this poisonous climate.
I'm not getting fooled by the NYT. It's the decision they cite - and the quote from it - that I'm worried about. Luttig struck down a partial-birth abortion law. He called the Supreme Court's abortion decisions super - precedent. That's sounds pretty clear - and ominous - to me. 'If you can quote language from Luttig that disproves this language from Luttig, to justify your statement, please do so.
As an appellate judge Luttig would be bound by precedent to a greater extent, not the case as a SCOTUS justice.
I'm not an Alan Keyes fan, but he had an interesting and believable article recently pointing out that the big money boys in the GOP are pro-"choice" and pro-"Roe" and that's why Bush hasn't given us Supreme Court nominees who would clearly overturn Roe. Roberts said it's strong precedent. And Luttig appears to say the same thing. Thing about Scalia and Thomas is, they're willing to reverse bad precedent. Bush should give us nominees who are of the same mind -- but the GOP big money boys don't want that, so it's not clear that we'll get it.
Strange! I don't remember Justice Roberts saying anything about super-state decisis when he was questioned. I'm sure some Freeper will refresh my memory, and will tell me in what reference he used that term. I just cannot believe he meant that he would back Roe v. Wade.
Thank you. You answered my question before I could even post it.
Don't forget Ann Coulter. Despite her punditry to the contrary, Ann's constitutional law experience is next to nil and none.
You seem to know this stuff. Can they send it back to the state courts without literaly overturning the decision? Or must it be overturned first to do so?
Personally I would be happy to get a chance to vote on it by way of referendum.
Don't fall for it
Today's Keyes article on Luttig is what I was thinking of. But I prefer to suspend judgment on this, because Keyes sometimes has a habit of jumping to conclusions before checking things out, and on the issue you speak of he tends to be an unrealistic perfectionist.
Keyes is certainly correct that the Country Club Republicans who are big donors tend to belong to Planned Parenthood. I know more than a few of them personally. They want to be able to have an abortion if it's convenient, and they like the idea of keeping the population down so they won't be too crowded.
Bush/Rove did indeed support that position in California, putting in Parsky as head of the party, pushing for Arnold after shooting down Bill Simon. The jury is out as to whether that was just what they considered to be practical politics (a mistake in my view) or whether they actually prefer those sorts of people. The Specter fiasco is another instance.
"Outside the Constitution"? See Amendment 1.
The reason it was an amendment, by the way, rather than part of the original Constitution, was that most of the founders didn't think it even needed to be stated. But apparently some things do have to be spelled out for some people.
The Liberal MSM was so successful in whipping the "conservatives" into a state of hysteria over the Miers nomination that I expect them to do it again and again with every SC nominee President Bush puts forward. This seems like the beginning of round two to me.
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.