Sticking With Precedent

"The law must be stable, and yet it cannot stand still." - Roscoe Pound, 20-year dean of Harvard Law School and distinguished jurist.

It became abundantly clear yesterday that "upholding precedent" will be the key phrase for Democrats opposing Judge Alito's nomination. With this strategy, they are hoping to get him to crack on Roe or at least get a sound clip to use in an ad against the ABA praised judge. But how important is stare decisis? In the confirmation process, it is important for Alito to bend to Sen. Kennedy and Feinstein's questions without lying under oath. But, when presented with a case after having been approved by the Senate, it is even more important for Alito to consider the cases decided on the issue prior to his tenure. In the possible future instance, Roe v. Wade and Planned Parenthood v. Casey.

What if SCOTUS justices always accepted the previous court's ruling as set-in-stone interpretation of the U.S. Constitution?

Most notably, in Plessy v. Ferguson, Justice Brown ruled that racial segregation does not constitute unlawful discrimination. Fifty-eight years later, Justice Warren wrote a unanimous opinion in Brown v. Board of Education Topeka ruling "separate ... facilities are inherently unequal." The Warren Court saw the error in the 1896 Plessy ruling and made a decision that is now considered one of the greatest of the Civil Rights Movement, perhaps the 20th century.

In 1905, Lochner v. New York's ruling took away a state's right to ban employers from making their subordinates from working excess hours. Twelve years later, Bunting v. Oregon ruled that companies must pay their workers overtime for hours worked above an agreed upon time. It is easy to see that in the latter decision, the SCOTUS stepped into private contracts to enforce protection for the employee, thus weakening the Contract Clause and the 14th Amendment.

Gideon v. Wainwright overturned Betts v. Brady. The court originally claimed "appointment of counsel is not a fundamental right, essential to a fair trial." Twenty-one years later, in Gideon, Justice Black held that the Sixth Amendment's right to counsel was a fundamental right that should not only be enjoyed by all, but is essential to a fair trial – something previously denied in Betts.

In a final example, something that may one day end up in an opinion of the Nine, Katz v. United States set new precedent by overturning Olmstead v. United States. The first wiretapping case to his the court, Olmstead, said it was within the Fourth Amendment to wiretap alcohol bootleggers without judicial approval. Justice Stewart, in Katz decided that a warrant must be given in order to wiretap phones, flipping the Olmstead ruling on its head.

It is very important for each of the nine justices to respect the rulings of the past. Like the current black-robes, every justice before them went through a rigorous process to achieve their position. If previous courts only stuck to precedent and did not bring their own view of the law to the table, we may still live in a nation with separate but equal railroad cars, schools, and restrooms. Who knows how different our country would be if we only stuck with precedent?

However, if Judge Alito believes that the Constitution does not provide a woman the right to terminate her pregnancy, it is within his right to rule in the way he interprets the law. If a justice feels that precedent was wrong, and a majority agree, perhaps it was. This does not mean it is right for President Bush to pack the court with people who have it in their crosshairs to overturn certain precedent. But, if Roe truly was a bad decision, it is the duty of the current SCOTUS to overturn it if a case comes before them. My crystal ball says one will.

Scholars today admit that the Burger Court was very liberal and in many instances did not exercise judicial restraint. When he assigned Justice Blackmun to write the opinion for Roe, it seems obvious the liberal slant weighed heavy. It should not seem vulgar to mention during hearings a judge's opinion on previous cases (especially those ruled during the Burger Court) or how he or she views the Constitution on the whole. It is frustrating that, due to questioning Democrats, that Judge Alito is not free to openly discuss his previous rulings or the way he interprets the law without fear of a temper tantrum…errr…I mean…filibuster. Let's hope that the left plays nicer with the current appointee than they did with Roberts. But, rational thought says that won't happen.