Webloggin » On Stare Decisis

Speaking of Rick, I was thinking about this disturbing quote from last week that he’s resurrected to haunt Sen. Charles Schumer. It seems the accident that befell Chief Justice John Roberts has the potential to be more serious than I, for one, was led to believe.

Of course, Schumer’s partisan ramblings are no more tasteless now than they were before the accident. That is not the point. Lord knows, I’ve got my share of salty things I’ve said about political opponents, and I hope no harm comes to those opponents but you never know. And of course I’d feel awful about it, and my words would stand as an albatross around my neck. So Schumer’s embarrassment here, assuming he’s decent enough to have some, is something I see as a “There but for the grace of God” thing.

But with apologies to the senior Senator from the state of New York, I do think there’s something worth inspecting here. The issue is this legal principle that so recently was sensibly enshrouded in elitist cloaking and dead language, called stare decisis.

Were we duped? Were we hoodwinked? Were we too easily impressed with the charm of the nominee Roberts and the erudition of nominee Alito? In case after case, our most recently confirmed justices have appeared to jettison decisions recently authored by their immediate predecessors. Although Roberts and Alito both expressed their profound respect for stare decisis at their confirmation hearings, many of their decisions have flouted precedent.

Now, Latin is a language that was never in common use in the United States. Someone in American history, therefore, made a conscious decision that this principle would be a good one to insulate from the knock’em sock’em robot arena of populist frenzy. I wonder what that someone would think about an elected official trying to agitate the elecorate into a convenient sentiment that the judicial branch is due for a shakeup due to stare decisis issues.

The complete phrase is stare decisis et non quieta movere which translates roughly to “stand by decisions and don’t disturb settled matters” or “stand by decisions and do not move that which is quiet.”

And my observation is this:

Lately, whenever liberals complain about stare decisis, it seems to me they’re never addressing that which is quiet. Quite to the contrary, the issue at hand is something rather tempestuous, officious, vibrant and lively…anything but settled. I can’t think of a single exception to this.

In fact, I’ll go further. Lately, it seems whenever the Supreme Court hands down an opinion that “flouts the principle of stare decisis” by sending a fox running over the grave of previous decisions our liberals would just as soon see undisturbed — if you look at those previous rulings, you’ll find about as much stare decisis as you’ll find under my toenails when they need a good clipping.

In other words, liberals like decided opinions to stay decided, if & only if those decided opinions, themselves, stirred everything up and shook it all upside-down.

It’s a good thing I’m not on the Supreme Court. My decisions, of course, would be quite correct because I make a lot of sense. But the comments I’d be unable to restrain myself from making in the aftermath, would be disastrous. I’d defend myself by saying something accurate and profoundly stupid, like “Hell yeah I promised I’d uphold stare decisis, and that’s why I voted to overturn that decision from the Warren/Burger courts that they’re mad at us for overturning. Because man, that pig-in-a-poke just sucked at stare decisis.”

And that would get me run out of town on a rail. But I believe it would have the potential to start a debate we desperately need to have in this country. There are a lot of decisions from the Supreme Court, still on the books, that suck at stare decisis. Liberals like Schumer have taken on this unfortunate and insulting habit of using that obscure Latin phraseology, which they damn well know their constituents don’t understand overall, to inflict a great assault on stare decisis under the guise of presumably defending it.

Anyway. Best wishes go out to John Roberts. He seems to be, personally, a very decent man and he’s exactly what the Supreme Court needs at this time. Signs look good. Once my wish is granted that he resume his station in full possession of his health and faculties, I’m sure history will record him to be President Bush’s second-greatest achievement.

[Discuss This Topic with MKFreeberg at House of Eratosthenes]