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The Supremes, Alito and Stare Decisis

For Latin lovers, “precedent,” or stare decisis, means:

To stand by decided cases, to follow precedent. A flexible doctrine of Anglo-American law that when a court expressly decides an issue of law, which is generated by the facts of a unique dispute, that decision shall constitute a precedent which should be followed by that court and by courts inferior to it, when deciding future disputes, except when the precedent’s application to a particular problem case is unsuitable to the character or spirit of the people of the state or nation, and their current social, political and economic conditions.

All lower courts, both federal and state, consider themselves bound by rulings of a higher court. Judge Alito explains that in his opinions on the U.S. Court of Appeals for the Third Circuit. Such deference, however, does not apply to the same degree when the Supreme Court addresses its own prior rulings.

One of the many myths about the power of precedent comes from the left’s treatment of it as equal to the text of the U.S. Constitution. Lest we forget, they remind us ad nauseum of that end-all be-all super-duper precedent, Roe v. Wade.

This, of course, relies on the “living” theory of the Constitution, as the late Justice Lewis Powell wrote in his dissenting opinion in an Eighth Amendment case, Rummell v. Estelle (1980). Powell was joined by Justices William Brennan, Thurgood Marshall and John Paul Stevens: “We are construing a living Constitution.”

Regular folks can’t see heretofore unseen fundamental rights because only the Supreme clairvoyant class can do so. These are those who are energized by the spirit of the “Great Carnack,” the late-great Johnny Carson’s favorite seer, soothsayer and sage. They alone know the “evolving standards of a maturing society” before the rest of us do because they alone are keepers of the Supreme Etch-A-Sketch.

A justice occasionally admits to one of the Court’s creative writing projects, as did the late Justice William O. Douglas in his dissenting opinion that criticized the obscenity test articulated by the Court in Miller v. California (1973): “Today we would add a new three-pronged test. … Those are the standards we ourselves have written into the Constitution.”

Then there’s the late Justice Brennan, another hero of the left, who wrote in his concurring opinion in Torres v. Puerto Rico (1979):

The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government.

I doubt that any member of the Senate Judiciary Committee’s undermedicated psychotic wing will ask Judge Alito to expound on that one.

The left loves it when activist justices create so-called constitutional rights that force into law the policy initiatives that legislatures and the people reject. But leftists protest with pounded chest the notion that another Court has a right to undo such rights because that, you see, would be “judicial activism.”

If you don’t understand this—feel affirmed. It simply means you haven’t taken leave of your senses.

If precedent were the equivalent of constitutional text, the Court would, in effect, be amending the Constitution at will and, by virtue of reversing its own prior rulings, repealing its amendments. So much for Article V, which limits amending the Constitution to “We the People.” Consider the words of the late Justice Hugo Black in his dissenting opinion in Griswold v. Connecticut (1965):

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me.

The left side of the Court and its mushy, swinging, middle, moderate, consensus members have never explained how such creative constitutionalism contributes to the need for stability and predictability in the law. But then, they rarely bother with explaining such trivia to the unenlightened ones.

It is true that the Supreme Court does not and should not disregard its prior rulings as if they were yesterday’s newspaper because we do need stability and predictability in the law. Nonetheless, the Court has never viewed its precedents as absolute.

Take, for example, the left’s current “consensus” favorite, Justice Sandra Day O’Connor’s dissenting opinion in Boerne v. Flores (1997), in which Justice Stephen Breyer joined:

Stare decisis concerns should not prevent us from revisiting our holding in Smith. “‘[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’” … This principle is particularly true in constitutional cases, where?¢â??¬-as this case so plainly illustrates—“correction through legislative action is practically impossible.” … I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it.

And then there’s the ever-favorite-finder of the “fundamental right to abortion,” the late Justice Harry Blackmun. Blackmun wrote the majority’s opinion, which jettisoned a precedent of merely nine years duration, National League of Cities v. Usery (1976), in Garcia v. San Antonio Metropolitan Transit Authority (1985).

We do not lightly overrule recent precedent. We have not hesitated, however, when it has become apparent that a prior decision has departed from a proper understanding of congressional power under the Commerce Clause. … Due respect for the reach of congressional power within the federal system mandates that we do so now.

Justice Powell’s dissenting opinion acknowledges that precedent is not absolute:

There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent decisions were ignored as abruptly as we now witness.

Consider a few other notable opinions in which the Court overturned its precedents:

  • Brown v. Board of Education (1954) reversing Plessy v. Ferguson (1896). The Brown Court figured out that separate isn’t equal, despite the fact that the text of the 14th Amendment has said so since 1868. No Etch-A-Sketch needed there.
  • Atkins v. Virginia (2002) reversing Penry v. Lynaugh (1989), which held that executing a mentally retarded murderer, who had the reasoning capacity of a 7-year-old, did not violate the 8th Amendment. Evolving standards of decency evolved in 13 years as the Court looked to polling results and international law.
  • Lawrence v. Texas (2003) reversing Bowers v. Hardwick (1986), finding no fundamental right to engage in sodomy.
  • Rasul v. Bush (2004) reversing Johnson v. Eisentrager (1950), which held that “aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus.” Justice Antonin Scalia argued in his dissenting opinion: “The availability of the habeas statute to aliens detained beyond the territorial jurisdiction of U.S. courts contradicts the precedent set forth in Eisentrager over fifty years ago. The ruling of the majority overturns settled law by misinterpreting previous court rulings.”
  • Roper v. Simmons (2005) reversing Stanford v. Kentucky (1989), which upheld application of the death penalty for those convicted of murder committed when 16 years of age or older. The decency evolution took 16 years this time.

Precedent is “settled law” but it isn’t as settled as the left would have you believe, especially when their side didn’t pour the concrete.

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Written By

Ms. LaRue is chief counsel for Concerned Women for America.

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