Posted on 11/01/2005 9:49:29 PM PST by nickcarraway
Samuel Alito, appearing with Arlen Specter shortly after his nomination to the court, amiably endured the Pennsylvania senator's lightweight babblings. Expect to be asked about "super-duper precedent," Specter, still enamored with his phrase from John Roberts' hearings, informed Alito. Like Roberts, Alito will no doubt humor this gibberish before the senators. Then hopefully he'll disregard it. Supreme Court Justices take an oath not to stare decisis but to the Constitution. If stare decisis becomes a more fundamental doctrine than the Constitution itself, then we've lost it for good.
The senators' interest in stare decisis as the trumping principle of constitutional interpretation is transparently dishonest. If they take preserving precedent so seriously, why do they routinely call on judges to disregard antique laws and rulings (as in Bowers v. Hardwick)? Indeed, their antiquity -- that these laws preceded our new age of enlightenment -- is treated by these politicians as an argument-ending proof against them. Even more basically, if precedent is so sacred, why isn't the original meaning of the Constitution a precedent worthy of respect?
Stare decisis has become a euphemism for the expectation that justices will bow before those great moments in liberal jurisprudence when the court rejected stare decisis to invent a new right or declare settled laws unconstitutional according to "evolving standards" of indecency. Under this willful construction of stare decisis, a liberal judge who disregards a precedent he dislikes is not in violation of "the doctrine"; only conservative judges who reject precedents of liberal courts can be.
The greatest transgressors of stare decisis are the courts liberal senators herald the most. The Earl Warren court junked 63 prior decisions; the Warren Burger court tossed out 61 decisions.
This revival of interest in the doctrinal authority of stare decisis, then, is nothing more than an attempted consolidation of liberal gains by nondemocratic means and a handy wedge to further divide constitutional interpretation from the Constitution itself. James Madison, called the father of the Constitution, wrote, "There has been a fallacy...in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Constitution. This distinction is too obvious to need elucidation. None will deny that precedents of a certain description fix the interpretation of a law. Yet who will pretend that they can repeal or alter a law?"
Madison never met Arlen Specter or Ted Kennedy. As far as these senators are concerned, stare decisis is more authoritiative than the Constitution itself and can transform an unconstitutional law into a constitutional one (and vice versa). Specter's "super-duper precedent," in other words, simply authorizes, and gives quasi-intellectual covering, to judicial tyranny, placing the authority of the Constitution not in the hands of a sovereign people who live under it but in the hands of judges whose alterations render it meaningless. Rule by stare decisis is not rule by law but rule by judges.
Stare decisis is not a strict doctrine but an "administrative and social convenience," writes Antonin Scalia. "Courts do not have the time to reconsider every legal issue anew, and citizens cannot confidently plan their actions if what the Supreme Court has said a statute means today is not in all probability what the Supreme Court will say it means tomorrow. (Some modern systems, of course, have not thought this administrative and social convenience worth the trouble, and, in principle at least, forgo the doctrine of stare decisis.) And since it is just an administrative and social convenience, the doctrine of stare decisis is not applied rigidly, as it used to be at common law."
Supreme Court justice William O. Douglas, writing in a 1954 Columbia Law Review article, rejected the idea that a justice has a special duty to adhere to the practice of stare decisis. "It is the Constitution which he swore to support and defend not the gloss, which his predecessors may have put on it," he wrote. Justice Felix Frankfurter wrote that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."
So when is stare decisis applicable? Only when it involves prior decisions that illuminate the original meaning of the Constitution. Yet this is the one expression of stare decisis its suddenly enthusiastic advocates forbid. In the de facto ongoing Constitutional Convention that is the Supreme Court, justices are expected to ignore those rulings that draw attention to the actual words of the Constitution and cobble together new constitutional rights by picking and choosing phrases from its most recent precedent-busting rulings.
Stare decisis in the hands of judicial activists turns the assumption underlying it upside down: old rulings that safeguard the Constitution receive no respect while relatively fresh misinterpretations of the Constitution, as in Roe v. Wade, assume a sacred air. The perversion of stare decisis is complete when instead of serving the Constitution it becomes a pretext for subjecting it to the most recent judicial whims.
Bingo.
What I really dislike is the notion of a “Constitutional scholar” who is educated by studying only that and not what the Constitution actually says.
I think the first year of law school should require the exclusive study of an unabridged English dictionary, terminology and logic.
The rest of the time should be spent in jail. Since so many lawyers are crooks, at least they can get a good start at making connections and get to know their chief clientele better...
A very good point, especially when case law can render the meaning of a written law to be exactly the opposite of what the legislature wrote.
I was dealing with a member of our legislature here, and quoted the exact statute under discussion. It was very clear language.
Her response: Do you have an opinion that supports that interpretation?
I said no, because it was just passed last year (when she herself voted for it). She refused to accept the common meaning of the language until there was a court case. Just Unbelievable. (Yes, she was a Democrat).
stare decisis is but potentially the wolf of enshrined relativism in legal sheeps clothing...
Under the theory set forth here, a sub-supreme court judge has a Constitutional duty to ignore stare decisis if he believes the supreme court's ruling is wrong. I like the principle of this--the appellate courts get lots of business if intelligent and principled judges disagree with the supreme's decision, which seems to me to be a good feedback mechanism. But most judges are natural kiss butts who don't relish being overruled. Stare decisis not only serves the supreme bullies in perpetuating their abuse of power, but also gives lower judges the excuse for adopting a to-get-along, go-along attitude in lieu of thought and principles.
A lawyer, for example, cannot file a suit in Federal court on behalf of a dog or cat.
I've been saying for years that it's only a matter of time before someone brings a class action lawsuit against a publication for journalistic malpractice. I even sent an e-mail to one publication who published an incoherent article about a crime committed with a "bolt-action Mauser assault weapon", warning that such a thing was going to happen to them some day, and I couldn't wait. The article was corrected within hours.
The Dred Scott decision, allowing slavery, should still be in place if Supreme Court decisions can never be changed. This is obviously a lie to save the hideous Roe decision.
But then, neither a dog nor a cat can be charged with assault or murder. Somehow that principle didn't get transferred over to these non-persons with very much diligence.
The most often cited phrase in the most often cited case in US jurisprudence is Marshall's "It is emphatically the province and duty of the judicial department to say what the law is." But that statement is radically misconstrued, to a meaning exactly opposite that which Marshall meant. That statement does not make a power, it circumscribes a limit on judicial power, as is clear from "reading on."
So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.And in that expression, the courts are subordinate to BOTH, the law and the Constitution. "To say what the law is" does not mean for the court to make the law. Anybody who has the intellectual honesty to "read on" will come to the same conclusion.If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
But it is no surprise, in our outcome-based society, that courts too will be outcome-based, and throw principle to the wind.
(I posted this on a different thread):
Speaking of Alito, and Roberts as well for that matter...some have suggested that neither man would, under almost any conceived circumstances, vote to overturn Roe. They say you can tell that by their very restrained, very precedent- respectful, very careful jurisprudence, and by their own demeanors and personalities. These prognosticators come from both sides of the political spectrum.
I would like to know what others think of this analysis of the two men.
?
(Seems relevant to this thread. Anyone want to weigh in?)
Civil war and Constitutional amendment. Howver, the author's point stands - as between the COnstitution itself, law, and past decisions, one MUST be given superior weight; and the only intellectually honest resolution is to give superior weight to the Constitution itself.
It has never been overturned by the Court. It was rendered powerless by the 14th amendment, proving that the Constitution trumps Court opinions.
Stare decisis has become a euphemism for the expectation that justices will bow before those great moments in liberal jurisprudence when the court rejected stare decisis to invent a new right or declare settled laws unconstitutional according to "evolving standards" of indecency. Under this willful construction of stare decisis, a liberal judge who disregards a precedent he dislikes is not in violation of "the doctrine"; only conservative judges who reject precedents of liberal courts can be.
…
The perversion of stare decisis is complete when instead of serving the Constitution it becomes a pretext for subjecting it to the most recent judicial whims.
Why do they routinely call on judges to disregard antique laws and rulings …
These idiots should be asked how slavery was abolished and voting rights were established for blacks and women (among other things)...
The Dred Scott decision, allowing slavery, should still be in place if Supreme Court decisions can never be changed
That's why Libs are so insistent it is the trump card to the Constitution.
Excellent analysis!
bttt
Oh fine, make me the idiot... ;-)
Not an idiot – just not well informed in a specific area.
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