Stare Decisis is Fo’ Suckas!
Today’s Salt Lake Tribune: Arlen Specter’s super-duper litmus test
   Imagine the chart he could have constructed to show the stare decisis foundation for the practice of slavery. After all, it had been the recognized law of the land for more than 70 years. Or imagine the senator’s chart to deny women the right to vote in 1920. With more than 130 years of precedent, his staff would have been burning the midnight oil to prepare a chart for his civics lesson to the nation. Would a time-traveling Specter have done such a thing? Of course not.
   Specter and his pro-choice colleagues know that we should respect decisions of the Supreme Court, but we should not be under the illusion that every decision made by the court is morally sound or, for that matter, even legally correct.
… Stare decisis is nothing more than a political litmus test to ensure that any candidate to the Supreme Court will agree to uphold Roe v. Wade. And we’ve been told by the same group of senators that any litmus test used to identify and appoint judges who might be anti-abortion are unacceptable.
Me: It might not exactly fall into the category of brilliant legal scholarship, but, eh….
January 8th, 2006 at 4:15 pm
Stare Decisis kept slavery in practice. It took a civil war and a constitutional amendment to end slavery.
Likewise, it was an amendment, not a court decision that granted women the vote.
So why is the Tribune advocating a judicial activist route rather than a consititutional amendment to end abortion?
January 8th, 2006 at 4:50 pm
Maybe it’s just me, but I don’t think that Wilson is trying to say that, in fact, court decisions are what abolished slavery or that courts gave women the right to vote. I think he’s just saying, “what if,” had the issues come to the courts, they held a view that precedent mattered more than anything else? Obviously, that would be an absurd position.
Notice his words: “Imagine the chart ‘he could have’ constructed…”
In short, I doubt he would disagree with your comment…well, except for your conclusion.
January 8th, 2006 at 5:45 pm
Do we think slavery would still be in force in the USA?
Or women still would be unable to vote in several states (I’m ignoring Utah)?
HA. The states would have sooner or later got it right at their own time in their own way.
The courts just hurry things along causing much friction and frustration when they are right, and much damage when they are wrong.
January 8th, 2006 at 9:30 pm
Yes, it was a bit snarkily worded at the end. But since slavery was recognized in the constitution, there would be no need for stare decisis since how could the court overrule it?
More to the point on abortion, if a court could throw out precedent and kill Roe, then it would be equally legitimate for another court to throw out that precedent and re-instate Roe (procedurely, at least, I’m not making a political arguement here).
January 8th, 2006 at 11:43 pm
More to the point on abortion, if a court could throw out precedent and kill Roe, then it would be equally legitimate for another court to throw out that precedent and re-instate Roe
And this is supposed to make us genuflect before stare decisis why? If that happened, the pro-life position would be exactly where it is now. Besides, I think that SCOTUS would have had their fill of the abortion issue by then and would rather leave it to the elected branches rather than be caught up in a constant political tug-of-war overturning and un-overturning itself over and over, especially considering the constitution has nothing to say about the issue in the first place.
January 9th, 2006 at 10:23 am
Shouldn’t it be …
Stare Decisis is Fo’ decisions we disagree with.
Or can we name some issues that you all personally agree with that are considered “settled lawâ€? where the precedents are considered integral to the decision, that you feel should be revisited since the only thing holding them up are the presidents involved which, as asserted is ‘fo suckers?
January 9th, 2006 at 11:13 am
And this is supposed to make us genuflect before stare decisis why?
I’m not saying you have to genuflect before anything.
If you want to have a never-ending political battle with courts reversing and re-reversing themselves, then go ahead and fight this in the courts.
Many in the pro-life movement have chosen that course. They don’t have the votes for an amendment, so they can’t win that way. Meanwhile they scoff at anything that resembles “safe, legal and rare.” And all the time, as they are fond of saying, millions are dying.
There were some people in Europe during WWII who did what they could to save a few Jews. Should they have not bothered since they couldn’t save all of them? No. Much could be done by pro-life and pro-choice people working together to significantly reduce the number of abortions. Instead, the leaders on both sides fight over SC appointments.
January 9th, 2006 at 11:33 am
If you want to have a never-ending political battle with courts reversing and re-reversing themselves, then go ahead and fight this in the courts.
Which is extremely unlikely to happen. If Roe v. Wade is reversed, it will be reversed by a court not wholly made of of Stare Decisis is Fo’ Suckas justices (currently there’s only one really: Thomas). You know, judges who respect precedent but also see that Roe is bunk that has polarized our country and is still very controversial. I doubt that it would ever be reinstated (especially since pro-choicers would have, ya know, real legislative options to impliment their agenda, i.e., keep the status quo - something we don’t have). Plessy wasn’t.
January 9th, 2006 at 1:24 pm
Stare decisis: the tactic by which, gradually and progressively over decades and generations, the federal constitution is supplanted by the will of the Supreme Court.