 |
 |
 |
 |
 |
 |
Another round of "spot the difference"Given the departure of the Supreme Court from the Constitution in recent decades, one of the key questions for any nominee thereto is their attitude towards the doctrine of stare decisis. Stare decisis can be charitably described as a common law doctrine which holds that if a case is brought before the Court, if another case has been decided which is indistinguishable (in the legal sense), the previous case should control the court's verdict in this case. It has the effect, in other words, of putting precedent on the same authoritative level as statutes. It's agreed by virtually all concerned that the law needs some internal control mechanism for stability, the consistency of the law being agreed as a good thing. Yet, the doctrine is a hangover from our English common law heritage, and in a country like England, that lacks a written constitution or formal separation of powers, it's a pretty good idea. But, first, it is on far shakier grounds in the American constitutional order; the U.S. Constitution states that "All legislative powers herein granted shall be vested in a Congress of the United States") (U.S. Const., Art. I, §1, Cl. 1) (emphasis added) - a clause of so little consequence that the embarrassed framers sought to hide it right at the start of the Constitution, where, presumably, no-one would think to look. Second, American constitutional law has an internal control mechanism: the constitution is written, an act which in and of itself demands fealty to the text. It goes without saying that stare decisis is not a dead letter; in statutory law, it remains entirely valid, and as a guide to constitutional law, it remains valid. But what stare decisis cannot do is trump the text of the constitution or a statute, lest we "mistake the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around." (Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke). In all cases, initial reference must always be to the relevant text. So, let's compare: Harriet Miers on Stare Decisis: "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. 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." (Senate Judiciary Committee, Questionnaire answers of Harriet Miers, nominee to the Supreme Court of the United States, p.56Antonin Scalia on Stare Decisis: "It has been argued that we should not overrule so recent a decision, lest our action appear to be occasioned by nothing more than a change in the Court's personnel, and the rules we announce no more than the opinions of a small group of men who temporarily occupy high office.Why, put like that, it couldn't be more obvious that President Bush has fulfilled his promise to nominate someone in the mold of Justice Scalia to the Supreme Court! It goes without saying that the discussion in all nomination hearings is an insulting cipher for the nominee's stance on Roe v. Wade, 410 U.S. 113 (1973). The suggestion that either liberals or conservatives are in the slightest bit interested in stare decisis in the abstract is patently absurd; no liberal complained when the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986) in Lawrence v. Texas, 539 U.S. 558 (2003) (link is to .PDF) or Stanford v. Kentucky, 492 U.S. 361 (1989) in Roper v. Simmons, 544 U.S. __ (2005) (link is to .PDF). Likewise, should the Supreme Court elect to overrule Stenberg v. Carhart, 530 U.S. 914 (2000) this term in Ayotte v. Planned Parenthood, 04-1144 (Oral argument scheduled 11/30/05), it seems unlikely that conservatives will be too upset as to whether the case presents sufficient occaision to do so. What is most troubling about Miers statement - like that of our new Fearless Leader - is its vapid prevarication. Whether one is for or against abortion as a matter of policy, it remains almost indisputable that Roe itself - and, a fortiori, Casey (505 U.S. 833) - was wrongly decided. I have written recently on this subject (Trying to have it both ways on abortion, post at 10/12/2005), and see no need to repeat those remarks here. It seems to me that Roe has become a shibboleth more than a legal decision; I really am curious to know how many people who defend that case a) have even read the opinion and b) can explain why it was correctly decided in any terms other than the result. And, to be fair, I should add, I really am curious to know how many people who hate Roe a) have even read the opinion and b) can explain why it was wrongly decided in any terms other than palatability of the result. It seems to me that a Republican nominee to the Supreme Court shouldn’t be going before the Senate Judiciary Committee and relying on slight of hand to bamboozle their way through questions on Roe. This implicitly seems to (mistakenly, in my view) concede the point that we are merely trying to obtain a policy-based result, rather than trying to correct a ghastly legal mistake which has corrupted Supreme Court nominations (and, by extension, Presidential elections) ever since. Instead, they should be going in there and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe. Stare decisis offers no defense against a wrong decision. |
    
|