#stare decisis

[liberalsarecool]

The conservative legal world is a haven for corrupted lawyers and judges. #Federalists

The Supremely Corrupt Court majority is utterly dishonest. It literally has two perjurers who lied under oath to survive their confirmation hearings.

To empower MAGA, SCOTUS invents and concocts brand new cheating interpretations of the Constitution.

Some context:

And...

And there you have it.

[nophunleague]

STARE DECISIS TRAILER!!!

lil update - threw together a tiny trailer, i do not claim for it to be perfect but it can be viewed by following this link

[nodynasty4us]

By disclaiming any need to consider broad swaths of individuals’ interests, the Court arrogates to itself the authority to overrule established legal principles without even acknowledging the costs of its decisions for the individuals who live under the law, costs that this Court’s stare decisis doctrine instructs us to privilege when deciding whether to change course.

Breyer, Sotomayor, and Kagan, Dobbs v. Jackson dissent

[dreaminginthedeepsouth]

Kevin Siers, Charlotte Observer

* * *  *

One of my classmates said it in an excellent post as follows:

One of the classes I loved in high school was Civics with Mr. Harms. He was an excellent teacher who required that we read the newspaper to stay abreast of current events. One day he gave us a list of topics and told us to write a paper on the topic that interested us most. 

One of these topics was “stare decisis” which is a legal doctrine where courts follow previous decisions on similar cases. Mr. Harms knew my plan was to become a lawyer so he wasn’t surprised when I was the only student in our class to select that topic.In college, and especially law school, we revered this doctrine as it is the bedrock of the law. It provides consistency in the application of the law to all parties and creates predictability in how courts should rule. In law school we were taught to look at legal precedents for guidance and to try to distinguish them from other cases. 

For a court to overturn a previous decision, there had to be extraordinary cause. Stare decisis makes it difficult for an appellate court to just say, “we know we said yes, but now it’s no.” This is especially true in the U.S. Supreme Court where only the most important cases are briefed, argued and decided. Stare decisis keeps the Supreme Court from swaying with the political winds. Yes, there have been countless Supreme Court opinions that have been shaped by the political leanings of the justices. But until today, there has never been a more politically motivated opinion issued overturning a 50 year precedent that has repeatedly withstood challenge after challenge.The issue of reproductive rights has been settled law. In fact, the Trump appointees all indicated this during their confirmation hearings. 

Had they said otherwise they know it would have been akin to saying 50 year precedents just don’t matter, a preposterous thought for a Supreme Court justice. 

In my mind, whether you are a supporter of reproduce rights is irrelevant. What you should fear is not the loss of Roe v. Wade, but the loss of stare decisis as the North Star for the Supreme Court. That star has been replaced by partisanship. I fear this court has just started down a path of overturning cases to appease one party. This is dangerous as it emboldens the opposite party to do the same when it has the majority on the court. What I heard today was the Supreme Court begin to sway, something I never imagined would occur. This is a sad day for those who support reproductive rights, but it is an even sadder day for those of us who believe in stare decisis.”

[Lana Bommicino]

[galina-ulanova]

Lauren Post and Grant DeLong in Stare Decisis (ABT, 2014)

[ml-pnp]

Flynn attorney: "Mystified by the entire thing" on Sullivan orders, but what's next?

Levin: “It's called a Writ of Prohibition."

[sarcasticcynic]

Supreme Court’s conservatives overturn precedent as liberals ask ‘which cases the court will overrule next’

Justice Clarence Thomas said overruling a 40-year precedent is justified because it wrongly interpreted the Constitution.

When the United States Supreme Court issues a published opinion ruling on a case, that ruling becomes precedent for future decisions. Under the legal principle of stare decisis (Latin for “to stand on the decisions”), the Court must abide by its settled precedents–even if individual justices may now disagree–unless there is a compelling reason to overrule the decision. This doctrine is designed to ensure that precedents are not routinely overruled whenever the Court gets a new justice who happens to lean the other ideological way.

Sometimes, of course, the Court does overrule its own prior decisions. In accordance with stare decisis, this typically requires a “special justification” beyond a belief that the original decision was wrong, such as significant legal developments since the decision. For example:

In the 1896 case Plessy v. Ferguson, the Court upheld the constitutionality of racial segregation, ruling that “separate but equal” accommodations were sufficient. In the 1954 case Brown v. Board of Education, the Court unanimously (9-0) reversed its prior decision and held that the Constitution prohibited the “separate but equal” notion.

In the 1986 case Bowers v. Hardwick, a divided (5-4) Court upheld a statute criminalizing homosexual sex (“sodomy”). In the 2003 case Lawrence v. Texas, the Court voted to overrule its prior decision, holding that the constitutional right to privacy protects private consensual sexual conduct, whether heterosexual or homosexual. By the time the Court decided Lawrence, only 13 states still criminalized homosexual sex.

In the 1971 case Baker v. Nelson, the Court dismissed an appeal from a Minnesota court decision upholding a law prohibiting same-sex marriage. There was no written opinion, no discussion, no vote, and no consideration of the merits. Nevertheless, because of the particular procedural way in which the case reached the Court, that dismissal was technically a decision on the merits and became binding precedent. In the 2015 case of Obergefell v. Hodges, the Court voted to overrule its prior decision, holding that the Constitution protects the right to marry, whether heterosexual or homosexual. By the time the Court decided Obergefell, 36 states had already established same-sex marriage.

There is at least one Justice sitting on the Supreme Court today who has evinced an outright disdain for stare decisis: Clarence Thomas. Thomas has an extensive list of case he would overturn immediately if given the chance, including but not limited to:

Brown v. Board of Education (which he has explicitly criticized)

Lawrence v. Texas (from which he dissented)

Obergefell v. Hodges (from which he dissented)

Grutter v. Bollinger (from which he dissented), which upheld affirmative action policies that consider race as one factor among many others

Roe v. Wade

Griswold v. Connecticut, which established the constitutional right to privacy upon which Roe v. Wade is based

New York Times v. Sullivan, which protects statements about public figures from defamation lawsuits in the absence of actual malice

Loving v. Virginia, which held that bans against interracial marriage are unconstitutional

Thomas’s supposed justification for his extremely narrow views is that he considers himself a strict textualist and literalist. If it isn’t written expressly in the Constitution, then it doesn’t exist. For example, Loving v. Virginia held that the constitutional right to “liberty” in the Fifth and Fourteenth Amendments includes the freedom to marry. Thomas, in contrast, maintains that “liberty” has only its literal meaning: “freedom from physical restraint.”

Thomas has specifically declared that even long lines of settled cases should be overturned if they are (in his opinion, at least) “divorced from the text, history, and structure of our founding document.” Note, however, that on occasion Thomas somehow manages to compromise his supposed principles. For example, in United States v. Lopez, he argued that the Constitution gives the federal government no right “to regulate marriage … throughout the 50 States”; in United States v. Windsor, he subsequently voted to uphold the Defense of Marriage Act, in which the federal government defined marriage as “the union of one man and one woman” throughout the 50 states.

This past Monday, Thomas managed to combine the worst of both worlds. In the 1979 case of Nevada v. Hall, the Supreme Court voted 6-3 that the Constitution does not immunize states from lawsuits against them in other states. In Franchise Tax Board v. Hyatt, the Court voted 5-4 to overturn that 40-year-old precedent and absolutely bar such lawsuits, throwing out a judgment against California in the Nevada courts after two decades of litigation.

Thomas authored the majority opinion on behalf of himself and the other four conservative members of the Court (including new Justices Gorsuch and Kavanaugh). Departing from his usual approach of textualism and literalism, Thomas admitted that “no constitutional provision explicitly grants that immunity,” but nevertheless held that sovereign immunity is “implicit in its structure” and “supported by historical practice.” (This is, of course, precisely the reasoning that led to the constitutional right to privacy, against which Thomas has railed so often.) He was thus comfortable declaring it to be “embedded in the text and structure of the Constitution,” even though it doesn’t actually appear anywhere in the text or structure of the Constitution.

Thomas further recognized that stare decisis should preclude the Court from overturning Nevada v. Hall without some special justification. Rather than try to find one–which he could not–Thomas simply brushed aside the entire doctrine and overruled the precedent on the sole ground that five out of nine current justices thought it was wrong: “Stare decisis does not compel continued adherence to this erroneous precedent.”

So Thomas believes in the strict, literal interpretation of the text of the U.S. Constitution… except when he’s the one who wants it to say something it doesn’t. And Thomas and his four fellow conservatives have now shown that they will freely depart from stare decisis and overturn any prior decision with which they now happen to disagree.

You know, like Roe v. Wade.

[gettothedancing]

Roberts And Kavanaugh’s Death Penalty Betrayal Again Shows Why Conservatives Never Win The Long Game On Judges

How many betrayals from Republican-nominated Supreme Court Justices will it take to finally convince conservatives that the judicial deck is systemically stacked against us in such a wa

For the Chief Justice, that he would switch his posture from dissenting to concurring in the same case merely two years later speaks volumes about his (erroneous) fealty to stare decisis norms. As Whelan says, "today the Chief treats as governing precedent the Court’s 2017 decision in Moore, in which he wrote the dissent (for himself, Thomas, and Alito)." As for Kavanaugh, he similarly would be mistaken to treat the 2017 Moore remand order as persuasive — let alone correct or even "binding." Indeed, it is very difficult to see how Roberts and Kavanaugh could possibly agree to summary reversal today if they did not both view the 2017 Moore remand — from which, again, Roberts dissented (!) — as something closely approximating "binding" precedent.

It seems clear that the Chief Justice and Justice Kavanaugh are already duking it out to see who can better anoint himself the "new Anthony Kennedy." I do hope they enjoy themselves. But what is not particularly enjoyable is to watch the legal conservative movement beclown itself time and time again by nominating — and placing institutional and political capital behind — judges who more often than not deeply disappoint conservatives.

In November 1996, the late Robert Bork penned the following at First Things:

Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.

Sadly, 23 years later, our crisis is even worse. We will never, ever win the "long game" of judicial nomination wars with the Left.

What we can do, however, is work to end sycophantic judge-worship and self-destructive judicial supremacism in America.