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7/26/2005

Stare decisis

Armando excerpts a bit from the Casey v. Planned Parenthood decision:
the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, principles of institutional integrity, and the rule of stare decisis require that Roe's essential holding be retained...
and contrasts it with this remark by Alberto Gonzales:
The legal right to abortion is settled for lower courts, but the Supreme Court "is not obliged to follow" the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday ... Gonzales said a justice does not have to follow a previous ruling "if you believe it's wrong," a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue.
Captain Ed comments:
Although Gonzales certainly has his legal analysis correct, perhaps it isn't the best time to debate the virtues and vices of stare decisis. Everyone understands that the Supreme Court can, and often has, reversed its own precedent. During a confirmation fight over a more explicitly originalist nominee, such commentary would not make much difference. In John Roberts, though, it appears that the Bush administration wants to present the least possible profile for partisan attacks while still ensuring a conservative replacement for Sandra Day O'Connor. Gonzales' comments only stir up more suspicion that Roberts and Bush have presented this nomination in a dishonest manner.

However, one cannot fault Gonzales for his analysis. After all, had all Supreme Courts relied solely on stare decisis, we never would have had Brown v. Board of Education, which explicitly rejected the Plessy v. Ferguson precedent of almost seventy years. That's more than double the amount of time that has passed since Roe, showing that reversals of even long-standing precedent can be highly beneficial and desirable. Less desirable for opponents of judicial activism is the example discussed by Power Line in Lawrence v. Texas, which discovered a right to sodomy in the text of the Constitution...

Liberals love both decisions, and both explicitly reject the concept of stare decisis, and over a wide range of time gaps. The notion of requiring a Supreme Court nominee to some blood oath to "settled law" shows more than a little hypocrisy. If pressed, Roberts should point out that the Supreme Court has a long history of poorly-decided cases, such as Dred Scott and Plessy, which succeeding courts had a duty to reconsider free of any slavish devotion to stare decisis.
First of all, the part in bold (emphasis mine) is not correct; the doctrine of stare decisis doesn't say that precedent should always be followed, just that precedent ought to be a strong consideration in any decision.

Also, notice that Captain Ed is hinting at a kind of underhanded strategy here. Gonzales is, as Captain Ed noted, perfectly correct in his analysis. Ed knows full well that Roberts' statement about Roe - that it was "settled law" - doesn't mean that Roberts couldn't or wouldn't overturn it if given the chance. But he doesn't want to make a big deal out of it, and he certainly doesn't want Roberts to say whether or not he would overturn that particular precedent.

Basically, the strategy is to have it both ways, or to try anyway. They can point to the "settled law" comment to squelch concerns that he'd overturn Roe, and then turn around and (wink wink) point out, as Gonzales did, that the Supreme Court isn't bound even by its own precedent. But this sentiment can't be voiced too loudly; it's a fine line they're trying to walk here.

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