Friday, June 29, 2007

The Death Of Stare Decisis

Today I'm discouraged. Yesterday I was stunned, but today...well, I'm discouraged. And angry. To see a stake driven into the heart of racial equality by the US Supreme Court by its rolling back of Brown v Board of Education means that we can expect all of the gains made in this country towards a truly just society rolled back. And to a large extent we can thank the spineless Democrats of the 109th Congress for this momentous shift.

Erwin Chemerinsky, a law professor at Duke University, nails it when it comes to analyzing just how this could happen in his op-ed piece in today's Los Angeles Times.

THE SUPREME COURT term that ended Thursday confirmed exactly what many people had feared: that the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.

During those hearings, the two presented themselves as open-minded jurists lacking an ideological agenda. Roberts likened a Supreme Court justice to an umpire, a neutral arbiter whose personal political views are irrelevant to decisions. Both Roberts and Alito promised fidelity to the court's precedents.

But instead, Chief Justice Roberts and Justice Alito have behaved exactly as their opponents predicted. There was not one case this term in which the court was not ideologically divided, and not one in which Roberts and Alito did not vote for the result that their conservative backers would have wanted. In virtually all of these cases, they were joined by justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. ...

This term provides a powerful reminder of the importance of presidential elections in determining the composition of the court. If John Kerry or Al Gore had picked the replacements for William Rehnquist and Sandra Day O'Connor, it would have been a vastly different year at the Supreme Court.

It also is a reminder that the confirmation process is not working. Nominees come forward and murmur all the right platitudes, refusing to answer specific questions about their views. They promise to be open-minded, and they present witnesses who attest to their fairness. For Roberts and Alito, this was enough to secure their confirmation.

Heckuva job, Dems.



Anonymous Nora said...

So what can be done?

What's the answer? To my mind, both of them perjured themselves at their confirmation hearings. I doubt either one will be punished for that (Thomas wasn't, and he was almost as egregious).

For the future, is there any way to make the confirmation process work better? Is there any way to turn it into something substantive?

And for the present, and the foreseeable future while these bozos are on the court, I think the thing to do is look back at the Lochner era, when the Supreme Court was so in love with the right to contract that all manner of progressive legislation was found to be an unconstitutional infringement on the right of corporations to do what they liked (the Court didn't phrase it exactly that way, of course). Lochner was never exactly overruled, but by the time of the FDR court, it was tacitly killed.

I don't know enough about how people worked around a Supreme Court that was ridiculously out of touch with the real world, but I think it's time to do a little research and see which, if any, of those strategies could be modified and used now.

One thing is for certain: we can no longer think of the Supreme Court as the last bastion standing up for our Constitutional rights. Not as long as we have the Five Fingers of Conservativism on the scales.

6:22 AM  

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