What the Left Actually Means by “Stare Decisis”

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What the Left Actually Means by "Stare Decisis"

Every time there is a Supreme Court vacancy under a Repub­li­can pres­i­dent, the Left pan­ics, at least since 1973, when Roe v. Wade was erro­neously decided, invent­ing a sup­posed right to abor­tion that is nowhere in the Con­sti­tu­tion. With the nom­i­na­tion of Judge Brett Kavanaugh, the pat­tern con­tin­ues. We all know that this panic stems from the fact that the Left, when they con­trol the courts, uses their power to push their pro­gres­sive agenda on soci­ety when they can’t win at the bal­lot box, so they are afraid that our side will also use the courts to push our con­ser­v­a­tive agenda in just as under­handed a way as they do. There is one crit­i­cal dif­fer­ence, how­ever. Con­ser­v­a­tives do not make things up. We adhere to the Con­sti­tu­tion so any soci­etal change that comes from a con­ser­v­a­tive SCO­TUS is actu­ally bring­ing soci­ety back in line with the Con­sti­tu­tion, not some made up pro­gres­sive vision of what soci­ety ought to be.

The disin­gen­u­ous tac­tic most often used by the Left is the con­cept of stare deci­sis, which is Latin for “to stand by that which is decided.” Prac­ti­cally speak­ing, the Left con­sid­ers it to mean “Thou shalt not over­turn Roe v. Wade.” And in all the sound and fury about stare deci­sis, they often point out that this con­sti­tu­tional abom­i­na­tion is some kind of “super prece­dent” that absolutely must be upheld because it has been on the books for over 45 years. You can bet that their argu­ment that Oberge­fell v. Hodges (the gay “mar­riage” deci­sion) can’t be over­turned will be because it was just decided and SCO­TUS can’t over­rule itself that quickly. Con­ve­nient that two com­pletely oppos­ing argu­ments can be made for the same rule, “SCO­TUS shall not over­turn any deci­sion that we like.” It’s the same tac­tic they use about global warm­ing cli­mate change, but I digress.

It turns out that Oberge­fell itself over­turned Baker v. Nel­son, which was decided in 1972, a year before Roe, so it should have been at least as strong a prece­dent as Roe. And Brown v. Board of Edu­ca­tion (1954) over­turned Plessy v. Fer­gu­son, which was decided 58 years pre­vi­ously (1896). Just for fun, let’s take a look at Trump v. Hawaii, the “travel ban” case that was just decided this term. Aside from mak­ing lib­eral heads explode by rul­ing in favor of Pres­i­dent Trump, the deci­sion also over­turned Kore­matsu v. United States (1944), the Japan­ese intern­ment deci­sion from 74 years pre­vi­ously. Pre­sum­ably the Left agrees with every­one else that Kore­matsu should have been overturned.

Actu­ally, the con­trol­ling prece­dent on abor­tion is Planned Par­ent­hood v. Casey, from 1992. As I’ve writ­ten before, this deci­sion should be over­turned if for no other rea­son than to strike the exe­crable “Sweet Mys­tery of Life” pas­sage from the Amer­i­can legal lex­i­con (don’t let the door hit you on your way out, Jus­tice Kennedy). But is 27 years enough time to make Casey a sup­posed “super precedent”?

Here’s what it comes down to: The Left can use “ema­na­tions” and “penum­bras” to make up con­sti­tu­tional rights out of whole cloth and then hide behind stare deci­sis, effec­tively claim­ing a ratchet effect towards their pro­gres­sive vision for our coun­try. We on the right can use the actual text of the Con­sti­tu­tion to bring things back to where they should be. With Pres­i­dent Trump replac­ing Anthony Kennedy with Brett Kavanaugh, we have an oppor­tu­nity to make that hap­pen. I’m not wish­ing ill on any other mem­ber of the Court, but there is a chance we will be in even bet­ter posi­tion to do so in the com­ing years. Let’s hope that Pres­i­dent Trump will con­tinue to nom­i­nate strong con­ser­v­a­tives and that the Jus­tices have the courage to make it happen.

Every time there is a Supreme Court vacancy under a Republican president, the Left panics, at least since 1973, when Roe v. Wade was erroneously decided, inventing a supposed right to abortion that is nowhere in the Constitution. With the nomination of Judge Brett Kavanaugh, the pattern continues. We all know that this panic stems from the fact that the Left, when they control the courts, uses their power to push their progressive agenda on society when they can’t win at the ballot box, so they are afraid that our side will also use the courts to push our conservative agenda in just as underhanded a way as they do. There is one critical difference, however. Conservatives do not make things up. We adhere to the Constitution so any societal change that comes from a conservative SCOTUS is actually bringing society back in line with the Constitution, not some made up progressive vision of what society ought to be.

The disingenuous tactic most often used by the Left is the concept of stare decisis, which is Latin for “to stand by that which is decided.” Practically speaking, the Left considers it to mean “Thou shalt not overturn Roe v. Wade.” And in all the sound and fury about stare decisis, they often point out that this constitutional abomination is some kind of “super precedent” that absolutely must be upheld because it has been on the books for over 45 years. You can bet that their argument that Obergefell v. Hodges (the gay “marriage” decision) can’t be overturned will be because it was just decided and SCOTUS can’t overrule itself that quickly. Convenient that two completely opposing arguments can be made for the same rule, “SCOTUS shall not overturn any decision that we like.” It’s the same tactic they use about global warming climate change, but I digress.

It turns out that Obergefell itself overturned Baker v. Nelson, which was decided in 1972, a year before Roe, so it should have been at least as strong a precedent as Roe. And Brown v. Board of Education (1954) overturned Plessy v. Ferguson, which was decided 58 years previously (1896). Just for fun, let’s take a look at Trump v. Hawaii, the “travel ban” case that was just decided this term. Aside from making liberal heads explode by ruling in favor of President Trump, the decision also overturned Korematsu v. United States (1944), the Japanese internment decision from 74 years previously. Presumably the Left agrees with everyone else that Korematsu should have been overturned.

Actually, the controlling precedent on abortion is Planned Parenthood v. Casey, from 1992. As I’ve written before, this decision should be overturned if for no other reason than to strike the execrable “Sweet Mystery of Life” passage from the American legal lexicon (don’t let the door hit you on your way out, Justice Kennedy). But is 27 years enough time to make Casey a supposed “super precedent”?

Here’s what it comes down to: The Left can use “emanations” and “penumbras” to make up constitutional rights out of whole cloth and then hide behind stare decisis, effectively claiming a ratchet effect towards their progressive vision for our country. We on the right can use the actual text of the Constitution to bring things back to where they should be. With President Trump replacing Anthony Kennedy with Brett Kavanaugh, we have an opportunity to make that happen. I’m not wishing ill on any other member of the Court, but there is a chance we will be in even better position to do so in the coming years. Let’s hope that President Trump will continue to nominate strong conservatives and that the Justices have the courage to make it happen.