Perplexed by Precedent

July 5th, 2018 Posted by Susan's Musings 26 comments

I am perplexed. The response on the Left to Anthony Kennedy’s resignation and the resulting open seat on the Supreme Court has been utterly predictable. I expected their  hysteria and fear-mongering. The response on the Right is what has me puzzled.

Senator Susan Collins, a Republican (though I wouldn’t call her a conservative), said, “I view Roe v. Wade as being settled law. It’s clearly precedent, and I always look for judges who respect precedent.”

But she is not alone. Conservative sources that I respect  are suggesting that it is too late to overturn Roe v. Wade or to reverse the 2015 Obergefell decision that legalized homosexual marriage. They are citing a respect for precedent and the danger of rulings that would disrupt huge numbers of lives. Now, that confuses me.

Firstly, while I don’t have legal training and am not an ardent Court follower, I don’t think it is that uncommon for the Supreme Court to rule in ways that make earlier decisions obsolete. Certainly, both Sonia Sotomayer and Elana Kagan were confirmed in spite of (or perhaps because) both looked to establish new ideas and social norms rather than relying on the Founders’ intentions. Isn’t the whole rallying cry of many liberal judges not to be tethered to the past?

In the great moral issues of the day, specifically slavery, I can’t imagine any Senator explaining that noted civil rights cases like Plessy v. Ferguson needed to be upheld because of precedent and the great disruption that would come if they were overturned. In 1954, the 1896 decision confirming that “separate but equal” was constitutional, was unanimously reversed by the Warren Court in Brown v. the Board of Education.  Fifty-eight years of precedent and huge societal impact didn’t stop the Court undoing a grave wrong a previous Court had affirmed. Abortion on demand is another such great moral issue. Perhaps precedent demands that great issues that cause egregious damage need to be corrected.

If precedent was as important as is being claimed, neither Roe v. Wade nor the Obergefell decision would be law. Roe v. Wade found a right in the Constitution that had never been there to the point that many legal scholars, including those who favor abortion, admit that it was terrible law.  Obergefell undid over 2,000 years of precedent that established marriage as between a man and a woman.  As for affecting society, both caused and continue to cause immense challenges to the millions of Americans whose First Amendment religious freedom rights conflict with these rulings.

Politicians and pundits are notorious for speaking out of both sides of their mouths. With straight faces and without a hint of embarrassment Democrats will tell you that you must vote for a candidate because of her female body parts unless she is a Republican in which case her biology is irrelevant. So, to hear people who have advocated splintering established norms and establishing a brave, new world discover that precedent is their current favorite word isn’t a surprise. However, I am truly puzzled by conservatives, including those who disagreed with convention-shattering Supreme Court decisions, shrugging their shoulders and saying that it’s too late to return to saner jurisprudence. What am I missing? 

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26 comments

KIRK SUMMERS says:

Susan-
Another brilliant essay! There is a valuable argument to be made for letting what is settled to be settled (stare decisis.) We can all understand the difficulty in commerce (for one example) if interpretations of laws were changed repeatedly every few years. But, to my thinking, Roe v Wade is not settled law. For it is a mere interpretation (bending really) of an Amendment. Amendments ARE law, but the subject of abortion is not expressively written, nor is privacy. I believe strongly this issue is a question for the 50 states. The 10th Amendment says that those things not expressively written in the Constitution are left to the states. In the end, the real problem is in the hearts of those that seek to destroy life and in the minds of those that have allowed evil to influence their decisions. Ultimately the destroyers of innocence will face the Ultimate Judge Whom has no being to overturn HIM.

David J says:

I agree. A major reason for federalism is that we don’t all agree on everything. If one doesn’t like the way one state does things, one can move to another state where they do things differently. If a person is really tolerant of ways other than one’s own, one should support federalism. Unfortunately, there are those that want to nationalize every issue such that there is no escaping their agenda except to leave the USA. Many of them, if they had their way, would globalize every issue, then there would be no escaping their agenda.

Rebecca Poth says:

Obviously Susan Collins is worried about her constituency and doesn’t have a background which would cause her to want anything changed with Roe vs Wade. I doubt it has anything to do with her really being concerned about precedence. It’s all about Roe vs Wade.

James says:

Thanks for a great Musing again! The flaming, shameful hypocrisy is rampant indeed in The Swamp, and not the least among certain Republicans once enticed in by a certain Bush to swell the ranks of the GOP. Many did so and but for political expediency, to slither in among the winning side yet not to declare ideological solidarity. Of course I refer to the RINO’s, those Republicans-in-Name-Only. I am quite sure the Republican you cite, along with most of her ilk, would have ZERO qualms about abolishing a certain sacrosanct precedent, namely the US Constitution. How many times have I heard Democratic Socialists deride the Constitution as a worthless old relic, obsolete and outdated, sorely in need of revision! Why? It is because it stands in their way. God forbid that they have their way. For those with historical memory and imagination know all too well what comes next, for they have taken the first steps in attacking every societal standard: the humiliation and proscription of religion and its standards; the removal of God as the founder of inalienable human rights, to include life, liberty and the pursuit of happiness. In their New and Improved Constitution the Almighty State will be the final, infallible arbiter of who receives what right and in what measure. Goodbye America ruled by a government of the people, by the people and for the people!

Jim B says:

Unfortunately, you haven’t missed anything. There’s only one swamp (not a Dem swamp and a GOP swamp) and the draining is going very slowly because so few are serious about doing what’s necessary to accomplish it. We in the hinterlands seem to be just bystanders watching many of the swamp’s denizens trying to seal the leaks and refill it.

B Wilson says:

I truly can’t explain the “right” thinking this way. The left is only for what helps them. So if changing the rules helps them one time they are all for it. If the next day in a different situation does not, they are against it. They can look at you with a straight face and pretend the previous day never happened.

B. Wilson

Lew Frye says:

Precedence? As Soon as Senator Collins said the word, I knew it was wrong. Slavery was the precedence at one time. Women not having the right to vote was the precedence at one time.
I can see her demanding those precedences to stay in place. NOT! I’ll never understand liberals or semi-liberals.

Shawn says:

I’m seeing a disturbing trend in America. I’m seeing a growing number of both elected and unelected government officials not supporting the constitution of the United States. It’s too the point now I’m starting to wonder to whom their allegiance lie? We have a constitution, in it, it’s very specific on how things work. One of them the Supreme Court. The court, as with all courts, decides based on laws. The Supreme Court makes decisions based on the law of the land, the constitution. Now, people like Susan Collins, doesn’t seem to much interested in constitution, it’s like it’s foreign to her and people like her. If she doesn’t believe in the constitution, what does she believe in? If she believes in something else, don’t we have the right to know? She did take an oath to uphold the constitution. I would like everyone in the government from the top down to take a polygraph test.

Don Belding says:

The Dred Scott decision was decided based on some rather convoluted reasoning and a direct rejection of the Founders’ stated intent, but it then was regarded by many as a precedent to guide lower courts. Plessy vs Ferguson stood as precedent & “settled law” for, if memory serves, 58 years. It was decided in direct opposition to the actual words of the post-civil war amendments. They did not use the term “living Constitution.” but I think that idea lay behind that Court’s thinking. It then was overturned by a unanimous decision based on the actual words’ commonly understood meanings. It is interesting that the Progressives share with the slaveholders and the Jim Crow supporters a rejection of America’s founding principles.

Brian says:

“Life, Liberty and the Pursuit of Happiness”……….one of those is LIFE

Kristin Grose says:

Truly good precedent will withstand generations of testing. At the risk of being a conspiracy theorist, however, there may well come a time that this nation is brought to its knees for that egregious judicial fiat decision legalizing the killing of children under the guise of choice and the “echo of a privacy prenumbra” in the Constitution. This decision has long been thought to be terrible law and has been based and defended on weak and shifting sands. Thank you for being a warrior for life, Susan. Great read as always!

Joyce R. says:

Thank you for another timely and very discerning.musing. There are a couple other factors I’d like to add to the mix before we blame Republicans, conservative or RINO, for being complacent about not reversing the two most disastrous opinions of the last century. First, the right case needs to come up posing exactly the right issue for a reversal on either abortion or homosexual marriage. Although groups like the Alliance Defense Fund and the American Center for Law and Justice will be working with plaintiffs on these issues, a lot depends on what happens to a case on its way to the Supreme Court, as to what issues are available for review. In other words, the Court cannot willy nilly reverse a decision. Another problem is that the Court only handles a few hundred cases a year and the Chief Justice has a great deal of power to pick and choose what cases are selected. As some have observed, our current Chief Justice is fast becoming the new swing vote on the Court rather than a reliable conservative, and many doubt he is prepared to work to reverse Roe, at least. Furthermore, it takes four votes by the justices to accept any particular case. Now, if the President gets a third pick, depending on who it is, the chances improve. What I am saying is that the Congress would do us all a favor if they passed a law for the President’s signature recognizing that life begins at conception and granting the unborn full constitutional rights as a person under the law. That was a big loophole left in the Roe decision that should have been acted upon immediately. That Congress failed to do so is where the swamp effect really comes in. How we get the homosexual marriage decision reversed is harder but not undoable. I think the Court is the proper venue for overturning that case. Otherwise, the federal government gets even more involved in traditional state-law issues. Imho, Christians and Jews should be on their knees asking the Sovereign Lord for wisdom and discernment, grace and favor, in tackling both these issues as well as the many others than are rapidly bring our society to a point of collapse.

Brian F. Tucker says:

Like the animals from which many believe they are descended. They cannot see or perceive what their decisions can mean for the future. They only know what is good for them NOW. I remember that during the Hippy movement, their mantra was, if it feels good do it. For most congressmen and senators, it’s what will get me re-elected that feels good. Tremendous blog. Thanks again,

Brian

Tom bozikis says:

Susan,

You aren’t alone in this. When I was studying political science in the mid 60s, I had a discussion my instructor regarding political parties, in which he said that the Democrats move the chains further to the left, and the Republicans merely lag behind, but then accept the new norm as a conservative position.

In our history, we’ve had several justices appointed to the high Courtwho weren’t attorneys let alone judges on an inferior court. Also, it is unconstitutional for judges to rewrite legislation in their opinions, and it is important to remember that the Court has exceeded its authority when it inserted itself into determining what legislation is or is not constitutional. They have very limited areas of authority, and abortion and marriage are clearly outside their scope of authority. In fact, in the case of abortion, the court’s opinion contradicts the very law passed by the Continental Congress on July 2, 1776, where that act declares that we are endowed by our Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. It doesn’t mattter in what stage of life that may be, it is to protected.

Also, where in the Constitution does it give authority to government to determine what is and is not a marriage? Our Constitution is a contract into which the States entered to create the federal government, and, even though I’m not an attorney, in speaking with attorneys, in contract law, the parties are bound to the strict provisions of the contract. Therefore, anything done outside of the specific bounds of the contract, violate the terms of the agreement.

I recall that John Adams wrote something to the affect that our republic is established in such a way that is meant for a “moral people” and that it is totally inadequate for an immoral society.

My question is this…How can we survive, when our religious institutions have vacated the morality prescribed in scripture?

David J says:

I remember being shocked when I first heard that quote of John Adams’. I soon came around and agree. Without morality or virtue, SCOTUS judges might rule guided by their own preferences, rather than according to the law as written and the facts of the case. Court jury members might do similarly. People might vote to use the force of government to take things from one group to give to another. Journalists might use 1st Amendment protections to further their agenda by spreading distortions with impunity. Etc. I personally believe our Constitution was inspired of God, but for it to be effective, we do need to be generally a moral and virtuous people.

CARL Schleg says:

Wow, when I started your article, I too thought of Slavery as an example…..GREAT POST, THX

bob aronson says:

the question you posed, “what am i missing?” …. the answer (apparently) is that a post-Christian U.S. is the new norm.

Laurence says:

Setting precedent only started in late 1800s. Before this it was interpretation of the Constitution.

David Allen says:

Susan, you should run for the Senate. You’d get my vote (if you lived in Wisconsin)!

Susan Lapin says:

Well, thank you, David. And thanks to everyone who is taking the time to comment and add to the discussion.

Hi Susan:
While our Federal Supreme Court has passed all reasonable bounds in declaring certain things to become rights, the real source of the problem is something called “the incorporation doctrine” which gives SCOTUS and inferior federal courts a mandate to enforce the rights contained in and associated with the bill of rights upon the state courts, executives and legislators. Without it SCOTUS would not be in a position to interfere with states in their administration of what they see fit within their borders. While Roe and Obergefell have been crammed down on the states, so has McDonald v. Chicago (2nd Amendment Rights in Illinois) and Masterpiece Baking (religious rights in Colorado). It would be well for us to consider whether we wish federal ‘interference’ to protect us from the predations of our own states before we undertake to challenge stare decisis (it is decided). It is an ill wind which blows no good.

Peter B. says:

Hi Susan:

Terrific musing and great comments.

Maine Senator Susan Collins is one of an even dozen U.S. senators from New England. She is currently the only Republican Senator. Btw, Senator Bernie Sanders of Vermont is one of those twelve.

Five of the six states that comprise New England currently have 0 (zero) Republicans in their U.S. congressional delegation.

Susan Collins will be up for re-election in 2020, and I have no doubt that she is already posturing for survival by switching on her left turn signal. Who can blame her? Would we rather have a Democrat in that seat? There’s an old saying in the sales profession that “halitosis is better than no breath at all”, the suggestion that rather than lose a sale, it may be better to reduce one’s profit margin and settle for whatever you can get in order to keep the customer.

RINOs like Susan Collins are more of a symptom that the actual disease. The real problem is that too many Americans are exchanging their Judaeo-Christian values for the alternative moral values of a quasi-religious ideological cult; exchanging justice for social-justice, exchanging God’s justice for state justice, exchanging the God’s Truth for a lie.

But there’s hope. Just last month precedent that stood for forty-one years was overturned in Janus v. AFSCME Council 31 where the SCOTUS ruled that government employees cannot be compelled to join a union (and thereby be compelled to pay the associated dues and fees). In fact, Justice Samuel Alito went so far as to write in his majority opinion that the 1977 SCOTUS decision in Abood v. Detroit Board of Education has been “wrongly decided”. How’s that for an example (and a recent one) of overturning precedent?

America’s spiritual diet is improving. We’ve been taking our winnamins for the past 18 months, and things are looking up. God is still on the throne, and He’s not going anywhere.

“Some great purpose and design is being worked out here below, of which we have the honor to be faithful servants.”

– Winston Churchill, in his speech to the U.S. Congress, 1941

Daniel says:

Your wisdom, and this week (M-F), broadcast of kcm.org go hand in hand.
Hearing God’s voice in two different styles, yet same message. tells me God is warning us Christians, unless we get involved, and vote on bible values, not likely person. judgement coming/usa sow seed to death/(abortion), unless we repent havest of that seed/death coming to USA. Same bk of Daniel states anitchrist changes things,….well, GOD said, marriage is man/women….usa/anitchrist spirit changed God law…
…so unless we repent judgment coming.

EP says:

“As for affecting society, both caused and continue to cause immense challenges to the millions of Americans whose First Amendment religious freedom rights conflict with these rulings. ”

I don’t follow – how does a woman having an abortion cause an “immense challenge” for anyone else? And how does a homosexual couple getting married affect someone *else’s* marriage…?

Susan Lapin says:

This, by definition, has to be a short reply to a complex question, but once these became “rights” they quickly have moved to “forced thinking.” If you take the MCATS or other advanced tests, or want to be licensed in many fields, religious people have the choice of lying or failing. Pharmacists and others are put in the position of having to act against their faith or lose their jobs. Catholic adoption agencies have been closed down, etc., etc.

Craig Sink says:

Well said!
I think maybe some of these political controversies reveal whether a person is truly “conservative” or a “constitutionalist”.

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