Free Republic

Okay, the title is made up, and it would “more properly” read non stare decicis, or “do not stand by the decision.” The point is, there are occasions when old precedent is not only non-binding, but to follow it would be stupid, illegal and unconstitutional, and just plain un-Godly. With all that banters about regarding the strict following of the decisions of the higher courts coming from both the left and the right, aren’t you suspicious that you are are not getting the whole story on Stare Decisis? Do you really believe that our Founders would have shackled themselves to...

 THE HEARINGS on John Roberts's and Sam Alito's nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited. This exchange between Judge Alito and Senator Arlen Specter, near the beginning of Alito's testimony, was one of many similar colloquies:  SPECTER: In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental."  Now, that states,...

Many issues that affect our lives and shape our nation turn on judges' decisions on constitutional questions. Can students say "under God" in the Pledge of Allegiance? Can states take away private property for private uses? Can Congress restrict campaign contributions and expenditures? Answers to these and other constitutional questions depend critically on how one approaches the interpretive task. Any sensible approach to constitutional interpretation must look to the core sources of law - the text, structure, and history of the constitution. For many questions, these will provide enough guidance to answer the constitutional question presented. Yet in many other...

Having failed to lay a glove on Samuel Alito this week on ethics, liberal opponents are now falling back on a hardy perennial to justify their votes against him: He lacks due regard for Supreme Court precedent, and in particular he might vote to overturn that holiest of liberal precedents, Roe v. Wade. As long as they're raising the subject, we agree this is a good moment to consider just what everyone means by stare decisis (Latin for "to stand by decided matters"). In the liberal caricature of the phrase, it means there are two kinds of conservative Justices. There...

The Stare Decisis Scam January 13th, 2006 The once obscure law Latin phrase “stare decisis” used to be the exclusive property of pompous judges and still more pompous first year law students. Roughly translated it means “to stand pat.” Suddenly that phrase is sweeping the nation. Thanks to the perverted politics that Roe v. Wade begat, all sides of the burning debate over our constitutional future are looking for political advantage in the simple idea that courts should not lightly overrule their own precedents. To the left, stare decisis means the Supreme Court’s mandate that every state must tolerate unlimited...

Samuel Alito Jr. wrote a memo in 1985 arguing there is no constitutional right to abortion, and pro-choice groups are alarmed by that document. They say it proves he's a right-wing extremist with a "long history of hostility to reproductive freedom," in the words of the National Abortion Federation.Maybe Alito is secretly plotting to make pregnancy mandatory for all fertile females, as the NAF sugests. But for those of us who are inclined to be charitable, there's another possible explanation for why he said the Constitution doesn't protection abortion rights: because it doesn't.It's true the Supreme Court has ruled it...

Ann Coulter: For fun, we ought to replace all the Republicans on the Senate Judiciary Committee with "American Idol" contestants (assuming they wouldn't object to serving on a committee that includes a degenerate like Teddy Kennedy). Democrats would still not be able to persuade a single normal American that Sam Alito is "out of the mainstream." Indeed, it's gone very well for Judge Samuel Alito. Of course, the baseless attacks of certain senators have gone way too far, clearly exemplifying the sorry state of today's Democratic Party. And while pathetic, the Dems' shameful behavior is very hurtful to some...

"Stare decisis" in upholding U.S. Supreme Court decisions is something the liberals belive in only when it suits their purposes.

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...

[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...

Freeper Investigation: Original Intent and Constitutional Jurisprudence by Jean F. Drew English and Anglo-American law’s core principle is the opposition to abusive power as exercised by the state. As Dan Gifford writes in “The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason,” “The law is not the law regardless if it be good, bad, or indifferent. There is a higher moral law, originating within ancient Jewish law, which requires individual responsibility for opposing evil and promoting goodness. It is from this basic tenet that English law and Anglo-American law embody the following principle: The individual has rights against the...

In an AP story, writer Nancy Benac details the array of opinions over how to question, on the floor of the U.S. Senate, a nominee for the office of Justice of the U.S. Supreme Court. Variations revolve around the manner and appropriateness of detailed interrogation as to how the nominee feels about various issues , thus indicating how that nominee will likely rule. That such articles are now written indicates just what danger the Republic now faces, and from whence the threat comes. Before the "Reduce Them to Mental Fudge" Acts of 1972 thru 2005 , our school systems used...

Which is more important: the Constitution or stare decisis? The right answer is the Constitution, of course. Not stare decisis. The Constitution specifically calls for officeholders to take an oath to uphold the Constitution. NOT stare decisis. That’s a Latin phrase meaning to abide by, or adhere to, decided cases. It is a judicial policy based on the belief that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed, even though later found to be not legally sound. The policy is to require lower courts to follow higher courts, which...

The adherents to the Roman Catholic faith, to continue in good standing, must accept one of the cornerstones of that faith, and so accept absolute "Papal Infallibility", when invoked. Due to the separation of church and state- propounded so zealously by the political Left in this country-, and like the Ten Commandments which they have so far successfully banished from courtrooms throughout the land- (except one...), this principal of infallibility is not inscribed in stone in any courtroom in the country. Yet the principal of stare decisis has somehow, though, in the recent past, begun to wear the de-facto cloak...

A Bush nominee to the Supreme Court may be probed about whether he or she would overturn earlier high-court rulings. Whomever President Bush nominates to fill Sandra Day O'Connor's seat on the US Supreme Court will inherit enormous power immediately upon confirmation. It is the power to assume Justice O'Connor's role of breaking deadlocks in major cases. But perhaps more important, it includes the raw judicial power to overturn many of O'Connor's decisions, should four other like-minded justices agree to take up the task. With high-court opinions on affirmative action, school vouchers, states' rights, and so-called "partial birth" abortion hanging...

Last week, on the heels of the decision in Raich vs. Gonzales giving federal drug laws precedence over a California medical marijuana statute, the Supreme Court ruled in Kelo v. New London that a home owner has no rights that a city planner is bound to respect. Neither ruling was particularly surprising to longtime court watchers--the New York Times praised the court in both cases for holding the line against conservative extremists. What was surprising, however, was how unpopular both proved with commentators of all ideological stripes beyond such bastions of elite opinion. Libertarians and conservatives were predictably outraged, but...

Reform of the judiciary (the need if which is increasingly evident) should begin with resolution of contradictory principles of constitutional law. The concept of a "living constitution" is inherently at odds with the concept of stare decisis. ("the thing is decided"). It violates common sense that the provisions of the constituion evolve but interpretation of them does not. Why should the founder's original intent be any more subject to revision than the latest 5-4 opinion as to what that intent was? Law should come with 20 year limits. A case should have no precedential value after 20 years. (So more...

The Bombshell in the Clarence Thomas Biography Jonathan Ringel Fulton County Daily Report A bombshell is buried deep within "Judging Thomas," Ken Foskett's engaging biography of U.S. Supreme Court Justice Clarence Thomas. It has nothing to do with Anita Hill's sexual harassment claims that nearly sank Thomas' 1991 nomination, although Foskett's conclusions about that episode are bound to spark arguments. Nor does it deal with the affirmative action policies Thomas detests, even though Foskett shows how the justice was a beneficiary of them in high school, college, law school and – reluctantly -- early in his career. It's a comment...

In 1790 Thomas Jefferson penned in a letter to James Madison his famous idea that "the Earth belongs to the living." With intricate mathematical calculations he determined the span of generations and reasoned that since present generations should not be bound by the decisions and compacts of past generations, all laws should expire every 19 years. Madison responded with a gentle -- but devastating -- counter, pointing out to his friend the practical problems with this idea and concluding that its implementation, by causing so much uncertainty in the continuity of arrangements, would be enormously harmful. For most of our...

When the U.S. Supreme Court agreed to review Lawrence v. Texas, pro-family conservatives were filled with foreboding. Something was afoot and it wasn't good. The court heard oral arguments in the case on March 26th.Lawrence involves the appeal of two Texas convictions for consensual homosexual sodomy. Like three other states, Texas makes it a crime for two people of the same sex to engage in "deviate sexual intercourse," that is, sodomy. In the Texas case, police investigating a false complaint of a weapons disturbance stumbled upon the homosexual defendants in flagrante delicto. The men were arrested, charged, and fined after...