Thursday, March 03, 2005

So long Stare Decisis

As promised, I have some more thoughts to share on the U.S. Supreme Court's joke of an opinion in Roper v. Simmons.

Basically, the U. S. Supreme Court has almost totally undermined the concept of stare decisis - lower courts are bound by the rulings and reasoning of higher courts. In Roper, the Supreme Court of Missouri held that under the U.S. Constitution, it was "cruel and unusual punishment" in violation of the Eighth Amendment to execute a criminal who murdered while a minor. At the time the Missouri Supreme Court decided this, the U. S. Supreme Court's last decision on this subject was Stanford v. Kentucky, 492 U.S. 361 (1989), which held that it was not a violation of the Eighth Amendment to execute murderers who murdered as minors.

For 400+ years of the Anglo-Saxon legal tradition, the Missouri Supreme Court's utter disregard of the opinion of the U.S. Supreme Court directly on point would be a flogging (not literally) offense. Why do we care that lower courts follow the precedent of higher courts? So that everyone is treated equally. If there is no high court guidance, then every lower court is free to interpret the law as it sees fit, virtually guaranteeing that the law will be applied unequally, and hence, unfairly and in violation of at least the Fifth and Fourteenth Amendments. (Most of Continental European legal systems do not adhere to stare decisis - which just shows how insane they really are.)

But now, according to the majority of the U.S. Supreme Court (including Sandra Day O'Connor's reasoning in her dissent), any time they are called upon to interpret the Constitution, which for them means making a value judgment, that necessarily is a mere snapshot of the current predominant social values. If social mores changed in the 16 years since Stanford v. Kentucky, when was the precise turning point?

According to the logic of the majority opinion, social mores are in constant flux and lower courts are called upon to determine those ever-changing social mores on a case-by-case, moment-by-moment basis. And since liberal constitutional interpretation is all about value judgments based on present day attitudes - a "living constitution" - literally everything is fair game for every lower court to reexamine at every instance.

Again, Scalia's dissent makes this point with utter elegance and damnation. The fact that truly brings this point home is that the murderer in Stanford v. Kentucky had his death sentence upheld, while the murderer in Roper v. Simmons had his death sentence set aside. If this is how you think the U.S. Supreme Court should be interpreting the Constitution, how do you justify this result?


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