[GeronL]

big bump, save to hard drive

[Kryptonite]

Democrats want opinions to trump the Constitution itself.

Excellent piece.

[p[adre29]

the SCOTUS has set themselves up as the Arbitars of the
doctrine of common law. And it is common law that a law
passed by the Congress cannot overturn.

"I woke up this morning and my country was gone"
"Yesterday is a different place, they do things differently
here"

[supercat]

When there are multiple possible decisions one could issue which would comply with regulations, statutes, treaties, and the Constitution, a judge should typically use stare decisis to select among them. If and when, however, stare decisis would suggest something other than what the regulations, statutes, treaties, or Constitution require, it should be disregarded.

[nickcarraway]

George Neumayr Ping

[adamsjas]

Dred Scott was stare decisis for many years.

[Lancey Howard]

Wow! This one is a stone masterpiece. A keeper.
Thanks for the ping.

[Fenris6]

Roberts made it pretty clear that, while stare decisis should be carefully weighed, it does not trump all other considerations.

[DB]

These idiots should be asked how slavery was abolished and voting rights were established for blacks and women (among other things)...

It wasn't by keeping legal precedence...

[Carry_Okie]

If stare decisis becomes a more fundamental doctrine than the Constitution itself, then we've lost it for good.

BOHICA. Even with Alito, conservatives wouldn't have that strong a majority. If Roe is to be undone, it will be piecemeal.

[sourcery]

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.

What an excellent campaign slogan for the Republicans in '06!

[papertyger]

"Stare decisis" is the modern demagogue's code phrase for "I stole it fair and square."

[TheCrusader]

"Stare decisis" is the doctrine of lazy judges. Where is it written in stone that something is necessarily correct just because an earlier decision said it was? Why can't so-called 'case law' be challenged? Where in our Constitution does it provide that case-law is incontrovertable?

[maryz]

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.

Exactly! The same principle operates (at least in MA) when any given issue is the subject of a ballot referendum question. As long as the liberals keep losing, the question shows up year after year (often expressed in progressively more confusing wording); once the liberals win, the subject is closed!

[DBeers]

stare decisis is but potentially the wolf of enshrined relativism in legal sheeps clothing...

[PeoplesRepublicOfWashington]

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.

[marktwain]

This article nails it. It is obvious to anyone who thinks about the Constitution and the Court, but not everyone has the time to do so.

Inconsistency, thy name is liberalism.

[kittymyrib]

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.

[Cboldt]

This is similar to the logic in Marbury v. Madison, except instead of comparing past Court decisions with the Constitution, Marshall was comparing statutory law with the Constitution.

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.

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.

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.

But it is no surprise, in our outcome-based society, that courts too will be outcome-based, and throw principle to the wind.

[R. Scott]

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.

If it is a ruling supporting previous rulings that I agree with, Stare Decisis was applied correctly. If it is a ruling supporting previous rulings that I do not agree with then it is a perversion?

Why do they routinely call on judges to disregard antique laws and rulings …

They should not. The judiciary is not the place to make or change law – if the law is truly outdated, change or (preferably) repeal the law.