29 September 2005

Against "settled" precedents

Much is made about legal precedent, especially during confirmation hearings. When asked about Roe v. Wade, Judge Roberts acknowledged that Roe is a precedent. I understand that he had to acknowledge this; it is at least true. (Some conservatives have been concerned that he did not make a statement a little more strenuously pro-life. But look, he's a judge, not a candidate for elective office. He ought not campaign for a seat on the bench. The issue for a judge--again--is not what the law should be; the issue is what is the law. But I digress.)

What concerns me about all this talk about precedent is that Democrats seem to be urging the idea that no decision of a supreme court may later be overturned by that same court. That just doesn't square with our Constitutional history.

It would be nice if I had time to discuss several cases in which the Court overturned a prior decision. But if we just take the implicit categorical proposition that, "For all Supreme Court decisions the Supreme Court does not overturn its prior decisions," all we need is a counter-example. So, I offer one.

Just this summer, in Roper v Simmons, the Supreme Court overturned, Stanford v Kentucky (492 U.S. 361 [1989]) a decision handed down a mere 15 years ago. In Stanford (to be quite brief), the Court held that a minor's being given the death penalty did not violate the Eighth Amendment. In Roper, the Court asserted that such a penalty did in fact violate the Eighth Amendment.

Well, there it is, then. The Court does reverse itself. And since the Left are so concerned about Roe, we ought to ask: How is it possible that Stanford can be overturned, but not Roe? (Former Labor Secretary Reich would probably tell us that, unlike Stanford, Roe is a "super, super, super dooper [what the heck?!] precedent."

One thing that concerns me about "settled" legal precedent is that we, a supposedly free people, have to live by rules that are settled--extra-constitutionally, I might add--by people who are not elected. And, what is more, according to the Left, once it is "settled" it is never to be subject to scrutiny again.

In no other shere of life is there such a principle. Think about it. I can never win an argument with my wife by staking out a position, appealing to my superiority by virtue of being the "man of the house," [Ha!] and then telling her that the issue is settled. What a joke. And even if I did declare some matter "settled" my wife would hardly feel obligated not to ask again at a later time. After all, what if, later on, some new facts indicate that the issue I settled should really have been settled in some other way?

But the courts, apparently, can do this. They formulate rules that we have to live by, and which are insulated from change by the need for a Constitutional amendment. They decide that these rules are "settled" legal principles which in many cases remove issues from venues in which they can be settled by the voting public. And that is my biggest problem with the Roe decision: it decided a very important issue by simply removing it from the democratic process. And I fail to see how anyone who has actually read the Roe decision can possibly think that is represents "good law". It is very clear that the Court arbitrarily decided to settle the issue--period. It's just not very republican. (Note the lower case 'r'.)


About Me

James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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