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Progressivism's Alamo (Why stare decisis has become so important to the liberal project)
The Weekly Standard ^ | January 18, 2006 | John Hinderaker

Posted on 01/18/2006 6:38:19 PM PST by RWR8189

 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, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.

How would you weigh that consideration on the woman's right to choose?

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It's not an [in]exorable command, but it is a general presumption that courts are going to follow prior precedents.

 

 

ALITO SUMMED UP the concept of stare decisis, or fidelity to precedent, very well. Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it's also liberals who want nominees to agree that the Constitution is a "living document." Just moments after asking Judge Alito about his commitment to stare decisis, Sen. Specter continued as follows:

 

SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, "The traditions from which liberty developed, that tradition is a living thing."

 

Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?

ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is--it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out--some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.

 

 

IF SPECTER NOTICED any conflict between fidelity to precedent and the Constitution as a "living thing," it was not apparent. And Judge Alito, of course, did not point it out. But a serious question does lurk here: How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?

Part of the answer, of course, is that the left's commitment to stare decisis is selective. Many of the Supreme Court's iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence's violation of that principle.

It would be easy to ridicule liberalism's inconsistent attachment to stare decisis as opportunistic. Nor is it hard to find a straightforward political motive. In a narrow partisan sense, it makes sense for liberals to emphasize attachment to precedent when confirming conservative nominees, since the best they can expect from such nominees is a holding action. One day, when a Democratic president is appointing liberal justices, we'll no doubt see more emphasis on the "living Constitution."

Still, something deeper may be involved as well. When liberals talk about a "living Constitution," what they really mean is a leftward-marching Constitution. Liberals--especially those of an age to be senators--have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: "conservative" precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

Over the last 25 years, however, the ground has shifted. History stopped moving inexorably to the left and began to reverse course. The conservative movement achieved electoral success under Ronald Reagan in the 1980s. It took a while longer for the conservative trend to reach the judiciary, but it's no coincidence that a number of conservative federal judges, including John Roberts and Sam Alito, got their start in Reagan's White House or Justice Department. Now, 20 later, they are eligible for elevation to the Supreme Court.

So the left's natural preference for a "living Constitution" has turned into a two-edged sword. Liberals can no longer assume that constitutional change will move in only one direction. Hence their newfound reverence for precedent. That reverence, while certainly selective, is not entirely insincere, and is not only about abortion. If we draw back from the buffoonery the Senate Democrats sometimes exhibited last week, we can see a more poignant scene: an old guard trying, with more resignation than hope, to hold on to its last redoubt.

John Hinderaker is a contributor to the blog Power Line and a contributing writer to The Daily Standard.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events; Politics/Elections
KEYWORDS: 109th; alito; alitohearings; casey; hinderaker; lawrencevtexas; liberalism; precedent; roe; scotus; staredecisis; ussc

1 posted on 01/18/2006 6:38:22 PM PST by RWR8189
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To: RWR8189

If we wanted to enshrine stare decisis then Plessy vs. Fergussen ("separate but equal schools are OK for the races"--i.e., meaning segregated schooling) should have been upheld, and Brown vs. Board of Education was wrongly decided.

Likewise, Dread Scott (black inhabitants of the USA are
not citizens, and cannot become citizens; and slavery
means ownership of the individual, and not just ownership of his labor) should still be the law of the land.

However, SCOTUS does reverse itself from time to time (proving it is not infallible. . .)


2 posted on 01/18/2006 6:45:22 PM PST by CondorFlight
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To: RWR8189
Liberals--especially those of an age to be senators--have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics.

A point important far beyond judicial confirmations. I think part of the left's moonbattery these days is because they cannot see how "progress" could be stopped. In the U.S., at least in the medium term, the future is not one in which their blueprint is implemented, and that seems strange to them. Legalized abortion, relaxed attitudes toward family structure, state health care, earnestly implementing the multicultural pieties and so on are the natural endpoint of our having learned to get out of the oceans and walk erect in the first place, and so it does not compute that a society would voluntarily reject it. That Old Europe, where these views have most come to fruition, is in such a bad way (which they know in their hearts but don't admit in public) just makes it worse.

The unusual American conservative movement, with its emphasis on low taxes, limited government and traditional social mores, is an in-your-face challenge to the left's entire cognitive map of human society. And its success is correspondingly taking its toll on them.

3 posted on 01/18/2006 6:47:31 PM PST by untenured (http://futureuncertain.blogspot.com)
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To: RWR8189

As usual, right on the money.

The favorite term that leftists have had for themselves over the past couple of hundred years is "progressive."

They believe in progress, which as Hindraker remarks, always moves to the left.

Karl Marx elevated this thinking into a scientific principle. The inevitable march of progress would relegate religion and superstition and nobility and kingship and all the relics of the past to the "dustbin of history."

"Time marches on," as the newsreels used to say when Franklin Delano Roosevelt was president.

But the twentieth century revealed that progress is not inevitable, that Communism was history's bloodiest failure, and that the advancement of humanity to higher and higher levels was by no means inevitable. In fact, postmodernism has abandoned those old ideas of progress, but somehow has adopted the marxist vision to new cultural systems.

Incidentally, I hesitate to mention it, but Darwin played no small role in this credulous belief in everlasting progress, onward and upward. It is no coincidence that our imperial courts are anxious to impose Darwin on our children at the same time that they outlaw relgion from our schools.


4 posted on 01/18/2006 6:52:19 PM PST by Cicero (Marcus Tullius)
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To: RWR8189

Excellent piece, and greatt posts thus far.


5 posted on 01/18/2006 7:02:19 PM PST by NutCrackerBoy
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To: CondorFlight

Uhhh, that would be "Dred Scott" as in "Dred Scott v Stanford," and if Stare Decisis is to become the latest amendment to the Constitution, well, let's revisit Dred Scott!

Or, let the Dims STFU!


6 posted on 01/18/2006 7:04:18 PM PST by Redbob
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To: RWR8189
"It would be easy to ridicule liberalism's inconsistent attachment to stare decisis as opportunistic."

And that would be a correct assessment.

7 posted on 01/18/2006 7:07:21 PM PST by Redbob
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To: RWR8189

Good analysis.

"It's the Judiciary, stupid", should be the conservative mantra.


8 posted on 01/18/2006 7:09:50 PM PST by aligncare (Watergate killed journalism)
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To: Cicero
the advancement of humanity to higher and higher levels

I wonder if they include 'Brokeback Mountain' as part of that advancement?

9 posted on 01/18/2006 7:23:32 PM PST by aligncare (Watergate killed journalism)
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To: RWR8189
When liberals talk about a "living Constitution," what they really mean is a leftward-marching Constitution.

Perzackly.

10 posted on 01/18/2006 7:28:44 PM PST by P.O.E.
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To: CondorFlight
Actually, Dread Scott was never overturned by any court. It was rendered moot by the 13th Amendment.
11 posted on 01/18/2006 7:49:57 PM PST by curiosity
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To: aligncare

Sadly, even if Roberts and Alito turn out as we hope, we still need another vacancy to finally right the Court. The only other hope would be that Roberts and Alito are somehow able to turn Kennedy back from the Dark Side, but his embrace of the living constitution nonsense (as Scalia pointed out in a dissent in the recent case where SCOTUS overturned a 15 yr old precedent on juvenile execution, Kennedy absurdly maintained that the Constitution had somehow changed in the intervening 15 yrs, not that his own views had changed) I think that will be a long shot at best.


12 posted on 01/18/2006 7:52:00 PM PST by Aetius
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To: curiosity

"Actually, Dread Scott was never overturned by any court. It was rendered moot by the 13th Amendment."

Which amendment was arguably never ratified, since the southern states were out of the union at the time, and not counted in the 3/4 total needed for ratification.


13 posted on 01/18/2006 7:53:22 PM PST by CondorFlight
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To: aligncare

Of course. More abortion. More perversion. More sex without consequences--except for the consequences of depression, disease, and death. More assisted suicide. More cloning. More AIDS so we can have more AIDS walks.

That's progress.


14 posted on 01/18/2006 8:07:37 PM PST by Cicero (Marcus Tullius)
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To: Cicero

I prefer the precedent of the constitution.


15 posted on 01/18/2006 8:12:51 PM PST by DaveyB (Ignorance is part of the human condition - atheism makes it permanent!)
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To: RWR8189
There is a need for development of a principled doctrine of when it is ok to overturn liberal precedents that are contrary to the Constitution, in spite of stare decisis. There should be some time for this to be explained in a few lesser decisions, and then when there are 6 or 7 conservatives, it shold start being applied quite often.

In my scenario, a conservative majority would announce that the doctrine of adherence to original intent would govern the interpretation of the Constitution. Scalia could explain it quite clearly, and even the libs might begin to understand it. Basically, if you don't use original intent, you get judicial tyranny, because then the Constitution says whatever any 5 justices say it says, and representative government is seriously undermined. The constitution is living, in that it contains a procedure for amendment. That is the democratic way to do it properly.

Having explained this principle in some major decisions of first impression, the court could then branch out to look at decisions that have already been decided, that would normally be protected under stare decisis. If those cases involve an interpretation of the Constitution that was premised on the notion that the founders' original intent is irrelevant, as all liberal decisions are, the establishment of the principle that original intent governs would require that the decision be re-examined and overturned.

It is a two step process: First educate the public on the importance of original intent in interpreting the Constitution. Then start blowing away the crappy decisions of the past 60 years which basically destroyed the Constitution as a document that means anything, if they clearly were decided on principles other than original intent.

16 posted on 01/18/2006 9:03:11 PM PST by Defiant (Dar al Salaam will exist when the entire world submits to American leadership.)
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To: CondorFlight
Likewise, Dread Scott (black inhabitants of the USA are not citizens, and cannot become citizens; and slavery means ownership of the individual, and not just ownership of his labor) should still be the law of the land.

Well no, that one was overturned the only way the meaning of the Constitution can be changed, by the amendment process. Amendments 13 and 14. Strangely though, other decisions that would seem to be overturned by the 14th amendment are still considered "good law", especially when it comes to applying the immunities protected by the second amendment to state actions.

17 posted on 01/18/2006 9:33:43 PM PST by El Gato (The Second Amendment is the Reset Button of the U.S. Constitution)
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To: RWR8189

"It took a while longer for the conservative trend to reach the judiciary..."

Too bad Republicans nominated Souter, Stevens, O'Conner and Kennedy.

Had they used those picks for the equivalent of Scalia, Thomas, Roberts and Alito--the majority would be already in hand.

That shows the importance of a President to pay close attention to who he nominates.


18 posted on 01/19/2006 12:29:46 AM PST by truth_seeker
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To: Aetius

I agree with your assertion.

There may be a constitutional legislative way to limit the court's jurisdiction. But, we would need a stronger legislature.


19 posted on 01/19/2006 4:21:00 AM PST by aligncare (Watergate killed journalism)
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To: CondorFlight
Likewise, Dread Scott (black inhabitants of the USA are not citizens, and cannot become citizens; and slavery means ownership of the individual, and not just ownership of his labor) should still be the law of the land. However, SCOTUS does reverse itself from time to time (proving it is not infallible. . .)

In general, you're right, but Dred Scott v. Sandford was reversed at Gettysburg, and not by the US Supreme Court.

20 posted on 01/19/2006 4:23:53 AM PST by Jim Noble (Fiat justitia, ruat coelum)
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To: Cicero
You've just described the attitudes of the typical mindless blue-state liberal.

I have seen young women with 3 and 4 different race children from the many fathers they bedded. This collapse of mores in the minority community will doom our society. Women must begin respecting themselves again, and men must be taught to respect women, in the traditional sense.

21 posted on 01/19/2006 4:46:45 AM PST by aligncare (Watergate killed journalism)
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To: Defiant
It is a two step process: First educate the public on the importance of original intent in interpreting the Constitution. Then start blowing away the crappy decisions of the past 60 years which basically destroyed the Constitution as a document that means anything, if they clearly were decided on principles other than original intent.

Exactly! Move the electorate and you can move the judiciary. That is the reality of our representative republic.

Unfortunately, we have too many on our side that do not want to wait for the education and movement of the electorate. They want their way NOW or they will take their marbles home and place a pox on all our houses.

22 posted on 01/19/2006 4:53:26 AM PST by Erik Latranyi (9-11 is your Peace Dividend)
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To: truth_seeker
That shows the importance of a President to pay close attention to who he nominates.

It's not always a guarantee. If you listen to Mark Levin on the radio, you would know that he was part of Bush 41's team in selecting Souter. Levin relates the story that they were looking for a strict constructionist, and Souter gave them all the right answers. Souter's record was good. Once he was confirmed, however, we all know what happened.

23 posted on 01/19/2006 4:56:09 AM PST by Erik Latranyi (9-11 is your Peace Dividend)
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To: El Gato
Strangely though, other decisions that would seem to be overturned by the 14th amendment are still considered "good law", especially when it comes to applying the immunities protected by the second amendment to state actions.

Courtesy of The Slaughterhouse Cases which very narrowly interpreted the Priviliges and Immunities Clause. Remember that whenever the SCOTUS (of course indirectly) applies the provisions of the BoR to the states it uses substantive due process rather than the Privileges and Immunities Clause. AFAIK currently the only Justice that disagrees with this view is Justice Thomas.

P.S. The same problem applies to the Third, and Seventh Amendment, the right to trial by jury in all cases and the right to unanimous jury verdicts. None of these rights was applied to the states.

24 posted on 01/19/2006 6:25:40 AM PST by Tarkin (Impeach Justice Ginsburg)
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To: RWR8189

bump


25 posted on 01/19/2006 6:43:00 AM PST by Rakkasan1 (Peace de Resistance! Viva la Paper towels!)
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To: Erik Latranyi
You are right. If we got another conservative on the court and could overturn Roe v. Wade 5-4, it would cause a lot of turmoil. The court should hold off on accepting some of these liberal icons, and use some new issues to lay the groundwork. When moderates start seeing the way the wind is blowing, they might even start going along--viz., Kennedy. When the Supreme Court has established firmly that original intent governs, and the country understands that a "living constitution" is another term for tyranny, then they will be ready to drop the other shoe--that decisions which did not rely on original intent are now suspect and subject to reexamination. Decisions which were rendered pursuant to a faithful reading of the constitution, even if we think them wrong, should be entitled to respect under stare decisis. Those that are clear efforts by the justices to add to the Constitution without legislation, or which ignore original intent, can be disregarded without negating the general principle of stare decisis.

It is the liberals who destroyed stare decisis, by deciding to ignore the constitution and do whatever the hell they wanted to lo these 70 years. Correcting an anti-constitutional drift does not violate judicial principles, it restores them.

26 posted on 01/19/2006 7:44:47 AM PST by Defiant (Dar al Salaam will exist when the entire world submits to American leadership.)
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