Miers is a strict constructionist (more of the questionnaire)

Well, I 'll give your posts some more thought, but I don't know that it will change my mind. It's something to think about.

The great damage with Lawrence was the precedent. On the surface it seems to make little difference, but it's the ramifications of the precedent that makes it so awful. The Bush WH was either ignorant of that or they didn't care. But gay activists knew it very well. Almost overnight they stopped talking about privacy and started demanding pulbic recognition and benefits.

Lawrence was cited in the MA. Supreme Court's Goodridge case which legalized gay marriage in that state (and will more than likely force all 49 other states to recognize gay marriage, at least those that originate in Mass.). These precedents have far reaching ramifications that are often way worse than just the issue at hand. A constitutional right to sodomy breaks down the argument against gay marriage, polygamy, gays in the military...etc. The Lawrence majority tried to deny that, but Scalia exposed their phony argument in the dissent. Ah...but it's now precedent, so too late.

I agree with everything you said that time.

I don't think Miers is "pro-Lawrence". I do worry about her nerve to overrule it, particularly given her comments about judicial activism, stare decisis and precedent. Roberts had it right - in essence judicial activism is making law in usurpation of prior legislative law-making. Common law courts make law, our courts do not.

One of the left's biggest circle jerk lines is that it the law is what the Supreme Court says it is.

Miers needs to join with Roberts, Scalia and Thomas plenty to be able to turn that against the left.

Only, clearly Ginsburg thinks an appropriate circumstance is in a case like Lawrence vs. Texas that overturned recent (1986 I believe) precedent.

Lawrence v. Texas, 539 U.S. 558 (2003) overruled Bowers v. Hardwick, 478 U.S. 186 (1986). Kennedy makes a number of references to foreign law in Lawrence, although the decision is bolsterd by those references, it does not depend on them. Planned Parenthood v. Casey and Romer v. Evans are also used to justify the holding of Lawrence.

See also the wikipedia references, http://en.wikipedia.org/wiki/Lawrence_v._Texas and http://en.wikipedia.org/wiki/Bowers_v._Hardwick for commentary outside of the opinions proper.

Justice Kennedy delivered the opinion of the Court.
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision' ") (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).

Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

" Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] ... its decision has a dimension that the resolution of the normal case does not carry... . [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.

Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15-16. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven 'unworkable,' " Casey, supra, at 855. ...
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is. ...
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

You are one handy FReeper. Thanks for posting that.

"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it.

Comment: "ignores" is an all or nothing proposition. No serious argument has been fronted that a judge should ignore the past cases. A better opening to this paragraph would use the notion of circumspection. Humility is the notion that each Justice is obliged to objectively weigh past cases and present peers, rather than assume that his personal analysis is correct. Self-restraint is an ambiguous term in this sentence, and can be taken as a personal attribute, or an attribute of the Court to stay out of the business of legislating.

Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent.

Comment: The answer asserts that precedent is less powerful in some cases (e.g., Brown v. Board of Education), but does nothing to explain or justify the range of deference. Why is Brown a clear case of a ruling that deserves to be "in the crosshairs" of reversal? And again, her answer is composed with the word "ignore," where a softer word such as "modify" or a more precise word such as "uphold" or "reverse" would be much better.

Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry.

Comment: I am left wondering the meaning of "relevant to that question" in her phrase "the factors that courts have deemed relevant to that question." Does she mean that the factors that justify modification or reversal of past precedent will have varying weight, depending on the case at hand?

I find the phrasing in the second sentence a bit off putting, but agree with the point.

It could be that the decision was wrong, but "so what?" E.g., Leave stand a bad ruling that only affects buggy-whip makers, and is not used as precedent.

It could be that the decision was wrong, but it represents the result the people would overwhelmingly legislate anyway; and no citizen is deprived of any substantive right as a result of the wrong decision.

The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling."

Comment: The paragraph would flow better with a simple rearrangement. This is a criticism of her clarity of expression - her ability to cut to the chase and deliver a precise, on-point answer. This introductory paragraph would have been more clear (IMO) if rephrased thusly, using her own words ...

Whether the prior decision is wrong is only the beginning of the inquiry. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. The court must consider whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling.

Comment: True enough, but this is an answer that does not illuminate her sentiment about the nature of cases or errors in past decision making where the Court should be more (or less) likely to temper, modify or reverse a past holding or rationale.

It also omits discussion of other important factors that are not obscure.

ROBERTS: [in reply to HATCH] The court has frequently explained that stare decisis is strongest when you are dealing with a statutory decision. The theory is a very straightforward one, that if the court gets it wrong, Congress can fix it.
And the Constitution, the court has explained, is different. Obviously, short of amendment, only the court can fix the constitutional precedents. ...
ROBERTS: [in reply to GRASSLEY] There are different other aspects of the rules. For example, property decisions are afar less likely to be reconsidered because of the expectations that grow up around them. Statutory decisions are less likely to be reconsidered because Congress can fix it if it's a mistake.
Again, the court's decisions in cases like Casey and Dickerson, Payne v. Tennessee, Agostini, State Oil Company v. Khan, it's an issue that comes up on a regular basis and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.
The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations.