Wednesday, March 09, 2005

To Follow Stare Decisis is to Abandon its Traditional Meaning

SoCalLawBlog seems to think that liberals have won the stare decisis game and we conservatives are doomed to sit back and take it.


The left has the lead because they are shameless, and the right has shame. But, as my high school tennis coach taught me, once your opponent cheats, he has now established the rules. The majority on the U.S. Supreme Court cheated in Roper. But guess what they did, in their arrogance? They sowed the seeds of their own ultimate failure.

With Roper, it is the opinion - ne, instruction - of the U.S. Supreme Court that the U.S. Constitution is to be interpreted in accordance with current social values. Here is the critical point: It now violates stare decisis not to reevaluate the Constitution in every case, regardless of what the U.S. Supreme Court found to be then-current social values in a past case. A good conservative judge, applying the conservative perspective on stare decisis, should apply the U.S. Supreme Court's reasoning to its fullest.

First to go should be the Fourth Amendment exclusionary rule. As Scalia's dissent points out, no other "civilized" county has such a rule. Moreover, nowhere in the Constitution is the exclusionary rule required. Rather, the rule was a Supreme Court invention to further the policy behind the Fourth Amendment. However, as a consequence of Roper, it is now obligatory upon all lower courts to reexamine this rule in light of "international opinion." If any D.A. out there wants to argue this point, I'd be happy to write the appellate briefs, free of charge. And I certainly disagree with SoCalLawBlog that raising such an argument would get a lawyer in trouble. It is clearly a good faith argument allowed by FRCP, Rule 11.

Now, SoCalLawBlog pointed out Judge Roy Moore's takedown when he disobeyed a court order. Will something similar happen to a conservative U.S. District Court judge who throws out the Fourth Amendment exclusionary rule based on "international opinion?" Not on your life. Judge Moore disobeyed a court order when he was a party, not in his judicial capacity. Recall that the Ten Commandments monument was in the Alabama Supreme Courthouse, and the Alabama Supreme Court was being sued to have it removed. A U.S. District Court judge (or circuit panel) making a decision on the law in his or her judicial capacity is personally 100% immune from any consequences of that decision. The decision may be reversed by a higher court, but the judge stays a judge, unless impeached. And if Clinton couldn't be removed from office, what are the chances that a politically motivated impeachment of a conservative judge would succeed? None.

SoCalLawBlog does bring up a good point when he questions how a case will ever reach the U.S. Supreme Court to overturn Roper. Easy. Any Eighth Amendment case will do to give the U.S. Supreme Court the ability to reexamine the Roper method of Constitutional interpretation. What would be jucily ironic is if the next Eighth Amendment case to come before the U.S. Supreme Court, brought by some ultra-liberal activist group trying to prevent criminals from being punished, is used by the Court as a vehicle to implicitly overrule Roper and its entire set of flawed Constitutional interpretation methods.

Moreover, as Roper also holds, the views of ordinary Americans via state legislatures are not the only way to determine current social mores. A shift in the law, not practice, of a mere 10% of states, was apparently not enough because Justice Kennedy had to go trolling for "international opinion." Any poll of ordinary Americans on abortion will show that the vast majority favor severe restrictions on abortion in the third trimester. A recent CBS poll found that 63% of americans favor stricter limits on abortion than now exist (40%), or want it banned outright (23%). That's good enough evidence for me of current social mores to find that the Constitution no longer allows abortion on demand. It took the U.S. Supreme Court a mere 16 years to - well, not overrule Stanford v. Kentucky, as Scalia points out - devine the social trend away from executing minor murders; 17 years for Bowers v. Hardwick's temporary view of then-applicable moral values to bite the dust in Lawrence v. Texas. Roe v. Wade is 32 years old. A lot more has changed. Reexamination time, baby.

The only reason the left's cheating thus far has worked is that the right believes that the Constitution does not change except by amendment. Hence, traditional stare decisis suggests that once a Constitutional issue has been decided, the particular holding of that case interpreting the Constitution should be followed thereafter. But with Roper, the very reasoning used to decide the issue before the Court compels the conclusion that the particular holding is transitory, and not a final say on the Constitution's meaning. Moreover, the reasoning of Roper compels the conclusion that no decision of the U.S. Supreme Court is ever final, according to liberal orthodoxy now enshrined as law, to which stare decisis mandates adherence. Just as the non-existent penumbra of privacy expanded from Griswold to Eisenstadt to Roe v. Wade, so too must the reasoning of Roper, if stare decisis is to be followed.


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