Supreme Court as a Rigged Game

Article excerpt


In his recent Senate testimony, Judge John Roberts addressed the judicial doctrine of "stare decisis." This Latin term means "to stand by things decided." It also means cases decided by the court enjoy a special cachet. The court doesn't like to overturn its earlier decisions, except when ... well, except when it decides it needs to overturn one of them.

One characteristic of a "conservative" judge is respect for precedent, even if the judge believes a case was incorrectly decided. Judge Roberts' regard for stare decisis is undoubtedly genuine, but he probably emphasized it to reassure liberal senators he won't try to overturn their hallowed Roe v. Wade. (Liberals love stare decisis because it protects court-dictated "law" they like but which they know has no chance of being congressionally enacted.)

Judge Roberts has previously said Roe v. Wade was decided on weak grounds. But he says it is "settled law" and reversing it would be disruptive. Ditto for other radical cases. The "cure" of reversal is worse than the "disease" of enduring a wrongly decided precedent.

This reluctance rarely restrains activist justices. They have no qualms about overturning precedent, realigning laws to their social and political vision. But conservatives won't do so, even if a case was decided on flawed premises, foreign laws or "emanations and penumbras."

In other words, the game is rigged. Liberals can impose their agenda judicially because they don't mind roiling the social and political waters. But conservatives rarely correct liberals' radical activism. Stare decisis makes the court a one-way ratchet.

In "How Stare Decisis Subverts the Law" (June 10, 2000), John Roland - noted author and Founder of the Constitution Society - wrote: "Stare decisis tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level..."

Mr. Roland notes opinions are often treated as law, "even though only the order and findings have the actual force of law, and only in that case." An opinion is only "commentary." "A poorly worded opinion can define a set of legal positions that exceed the bounds of the underlying constitutional enactments, and become the basis for future precedents, as though they were constitutional enactments. .. ."

Judge Roberts seems to be a man of principle and exceptional intelligence, but his own words indicate he probably won't lead the court to correct its radical rulings. These would include:

* A "right" to abortion on demand.

* Blocking state or federal attempts to outlaw "partial-birth abortion."

* Affirmative action refashioned as racial quotas.

* Banning expressions of faith in public schools and the public square.

* A national right to sodomy.

* Recasting eminent domain to include private property "takings" for commercial instead of only for public use.

After decades of liberal activist courts, stare decisis will prevent a conservative court from reversing past rulings because that might prove disruptive. Thus conservatives are ensnared in efforts to defeat liberalism in the courts.

Conservatives have been winning elections for decades. …