Louis DeBroux / May 15, 2019

Leftists Fear SCOTUS Overturning Precedent (Except When They Don’t)

Their measure of “correct” rulings is preference, not the Constitution.

With a theoretical 5-4 majority on the Supreme Court, conservatives can enjoy the spectacle of “progressives” suddenly discovering their (selective) reverence for legal precedent.

In a 5-4 ruling on Monday, the High Court overturned a 40-year-old precedent regarding sovereign immunity for states — one that shields them from private lawsuits initiated in the courts of other states. In writing for the majority, Justice Clarence Thomas, the Court’s conservative anchor, stated that the Court’s finding in the overturned Nevada v. Hall “is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution.” Importantly, he concluded, “Stare decisis does not compel continued adherence to this erroneous precedent.”

Justice Steven Breyer, writing for the minority, warned, “[It’s] dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. … Today’s decision can only cause one to wonder which cases the Court will overrule next.”

The expression of such fears is brazenly hypocritical. One cannot both advocate for the philosophy of a “living Constitution” — where the Constitution means whatever five black-robed oligarchs say it means — and demand fealty to stare decisis, the Latin term for “stand by things decided,” and the legal principle of rulings that are based on precedent.

The judicial despots of the Supreme Court have a long and inglorious history of ignoring the Constitution as written in favor of manufacturing new “rights” found nowhere but in the “emanations and penumbras” of their minds, like cysts discovered on a twisting, turning jurisprudential colon.

After all, “progressives” still cheer and revere the Court’s ruling in Roe v. Wade, which enshrined into law the murderous sacrament of abortion. Roe was a significant departure from long-held precedent, and even many left-leaning constitutional scholars concede that Roe’s reasoning was deeply flawed despite their personal support for the outcome.

It was leftist jurists, too, who eviscerated private-property rights and upended the historical understanding of the Takings Clause in Kelo v. New London — a ruling that leftists applauded because it allowed government to take private property from one private entity and give it to another, so long as it might increase tax revenue.

And leftists literally celebrated in the streets when, in Obergefell v. Hodges, the Court overturned centuries’ worth of laws establishing marriage as between one man and one woman. In doing so, the Court rendered marriage nothing more than a governmental validation of romantic relationships, as opposed to its historical purpose of legally binding fathers to mothers and children.

Nor did they object to the Court’s decisions in Lawrence v. Texas (2003, striking down anti-sodomy laws in 14 states), or United States v. Windsor (2013, striking down Section 3 of the Defense of Marriage Act, forcing the federal government to recognize same-sex marriages in states that had legalized it), or Hollingsworth v. Perry (2015, striking down Prop 8, California’s law defining marriage as between one man and one woman). Each of these cases paved the way for the Court’s legalization of homosexual marriage in Obergefell.

The hypocrisy of the Left in this case is further exposed when one considers their relentless efforts to overturn legal precedent dating back 228 years … namely, the Bill of Rights.

Leftists refuse to accept the law when it conflicts with their agenda, continually attacking our rights to free speech (Citizens United), to keep and bear arms (DC v. Heller — which former Justice John Paul Stevens still argues is “unquestionably the most clearly incorrect decision” of his time on the Court — and McDonald v. Chicago), and religious freedoms (Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, etc.).

While stare decisis helps maintain consistency and predictability in our legal system, it is not sacred. Few would argue, for example, that the decisions in Dred Scott v. Sandford (blacks are the property of slave owners and have no rights), Pace v. Alabama (marriage between blacks and whites is forbidden), or Plessy v. Ferguson (the doctrine of “separate but equal” supports segregation) should have been forever upheld simply because they were precedent.

Justice Thomas made this clear in his concurring opinion in McDonald, stating, “I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means. It is not ‘an inexorable command.’”

Unfortunately, even Republican-appointed and ostensibly conservative judges aren’t immune from the enticing lure of judicial activism and the desire to be lauded by the DC establishment. This is evidenced by Justice Brett Kavanaugh’s repeated siding with the Court’s left wing in overturning long-established law. Of course, in those cases, leftists applauded his rejection of stare decisis.

In reality, regardless of where upon the ideological spectrum one falls, there should be great concern for the amount of power the Supreme Court now wields with its ability to overturn and invalidate the decisions of the elected branches based on nothing more than a differing political philosophy.

In September 1804, Thomas Jefferson warned of this very thing in a letter to Abigail Adams, declaring, “The Constitution … meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

It seems Mr. Jefferson was prophetic.

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