Friday, June 27, 2008

Stare Decisis

Stare Decisis - "to stand by things decided", or in other words. To base decisions on what has come before. Stare Decisis, two words that Chief Justice John Roberts repeated his reverence for over and over during his Senate Confirmation Hearings .

This week, Stare Decisis took a decided turn for the worse with the decision in The District of Columbia v. Heller which declared the handgun ownership restrictions in the District of Columbia unconstitutional and for probably the first time "affirmed" the right of citizens to purchase and possess handguns. The last Supreme Court Case that dealt with this matter up front was a 1939 case , United States v. Miller, 307 U.S. at 178, where the court decided that the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only.

Gun rights advocates achieved an astounding victory with this weeks decision. The vote as is common with this court was split along ideological lines coming up 5-4 with Roberts, Scalia, Alito, Thomas and Kennedy in the Majority.

Gun ownership to me is not a problem. I don't agree with Scalia's majority opinion or the conclusion that we have an inherent right to bear arms, but it's not that big of a deal to me. I do care if someone is careless with them to the point their kids shoot themselves or someone else. But this isn't a post about personal responsibility or the right to bear arms. It's about the Supreme Court and the upcoming presidential election.

The decision makes clear that this court is fairly balanced with respect to how decisions are rendered. Often times, the results of a vote on a case come out 5-4, with Anthony Kennedy being the typical swing vote. In most of the major cases decided by the Roberts Court, 5-4 decisions seem to be the rule and not the exception.

OK, so what's the big deal? Well, if you are a conservative and like conservative judges who are "activist" judges, then not much. Don't believe all the BS about conservative judges being 'strict constructionists". They are only strict constructionists when they want to find against something they disagree with and claim that the constitution doesn't provide a right for whatever it is, whether it's privacy, civil rights, whatever. However, if you don't like "activist judges", and respect the notion of Stare Decisis, then this should bother you. But, we know that like most peoople judges most of the time vote their perspective and not for precedent unless it supports their opinion. Very few judges have the principled approach of respecting precedent if they disagree with the precedent. It's not unusual, it's human nature.

Anyway, if you are a liberal like me, you now know that the Roberts Court is and will be actively engaged for years to come. The Conservative wing of the party, particularly Roberts and Alito, are young and will likely be on the court for many years. John Paul Stevens is 88 years old, Ruth Bader Ginsburg is in her late 70's, David Souter is becoming more disenchanted with the court and has made noises about retiring for some time. So, within this next presidency, there is an opportunity for 3 positions to open up on the court. That concerns me if John McCain is president. His commitment to appoint judges in the mode of Alito, Scalia and Roberts would guarantee a right wing ideology would permeate the court's decisions for many years to come.

If you are conservative then you welcome this. Roe v. Wade would likely be overturned on the first challenge presented to a new court with a 7-2 swing toward the right.

If you are a liberal, then you need to be like me and be very concerned and work very hard to get Barack Obama elected president.

Oh, and by the way, the notion of "Stare Decisis" having influence on the Roberts Court? I think it will only if it suits their purpose. Other wise, it's just a Latin phrase nobody knows much about.

Tell me what you think.

Regards,

Dennis

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