Settled Law…Isn’t

Norma McCorvey (Jane Roe) on the steps of the Supreme Court 1989, Image: Lorie Shaull

The moral abomination that gave judicial imprimatur for expectant mothers to murder their helpless, unborn children is no longer extant. As expected, leftist supporters of that horrible practice have begun another season of “mostly peaceful protests,” including the de rigueur attacks on police officers attempting to maintain order and prevent insurrection and obstruction of state legislative business.

And also as expected, the usual suspects who claim to be Republicans but act like Democrats come out of the woodwork. Over at Red State, my former boss, fellow Infantryman, and good friend Streiff writes:

More dangerous was the criticism of three justices in the Dobbs majority, Justices Brett Kavanaugh and Neil Gorsuch, by Senator Susan Collins (Vichy-Maine). In her statement on the Dobbs decision, where she cried about the difficulty this decision placed on women desiring to kill their offspring, she made a very personal attack on the integrity of those two justices.

Read: Susan Collins Accuses Justices Kavanaugh and Gorsuch of Lying About Roe During Their Confirmation Hearing

Further down is the money quote regarding “precedent.”

Precedents are overruled all the time. The Court that decided Brown vs. Board of Education was well aware that Plessy vs. Ferguson was a well-established and widely accepted 60-year-old precedent, though I’m pretty sure that most would agree that only the most stupidly literally-minded court would have voted to retain it.

Collins was a major obstacle back when Trump nominee Brett Kavanaugh was undergoing Senate inquisition in hopes of replacing retiring Justice Kennedy. Senator Susan Collins (R[INO]) and a must-have vote, said this

I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.

“Established decisions.” “Established law.”

I have news for the Senator. What people refer to as “settled (established) law” isn’t – it’s not “settled,” nor is it “law.”

According to the Constitution of the United States, Article I, Congress makes the laws.  Period.  Full stop.  Judges don’t – at least they aren’t supposed to.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Back in my law enforcement days, I remember rookie cops and cop “wannabes,” along with more than a few young attorneys trying to appear more knowledgeable than they were, using the term “case law.”  That falls into the same category as “settled law” – it isn’t.

What these folks refer to as “settled law,” or “case law,” comes from a judicial concept adopted from common law.  The proper term is “stare decisis,” Latin for “stand by/on things decided.”  Put another way, we have adopted a legal tradition of deference to judicial precedent.  The United States adopted this concept as we built our judicial system, in order to establish a public expectation of consistency in judicial proceedings.  This is a good concept, but by no means an absolute one.

What does this mean in plain English?  Simple: Generally, in like legal circumstances, we will tend to decide today’s decisions and tomorrow’s decisions as we decided like cases yesterday…until we decide…to decide them differently.  And we do indeed do that on occasion.

  • Dred Scott, redecided by a war and a constitutional amendment.
  • Plessy v. Ferguson, redecided by Brown v. Board of Education.
  • Korematsu v. United States (Japanese internment), explicitly repudiated in Trump v. Hawaii (immigration).
  • Quill Corp v. North Dakota, redecided just days ago in South Dakota v. Wayfair (internet sales tax).
  • Friday, 24 June 2022, Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al

In short, there are good and proper reasons for deference to judicial precedent.  But we don’t need to give it outsized status.  We certainly shouldn’t allow RINOs like Senator Collins to derail conservative Supreme Court nominees or accuse them of perjury because she doesn’t like a ruling. We should absolutely call her out for her specious logic that merely diverts attention from her support of and for the murder of children in the womb

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2 thoughts on “Settled Law…Isn’t”

  1. The bigger deal in this case is the detailed explanation of how Constitutionally ill founded the Roe decision was and how important the 10th Amendment is. This is a 60 plus year fundamental change in how the Court is working based upon a return to Originalism. Thank you, President Trump.

  2. The only established laws are first, “Just” laws. Roe v. Wade was not just, nor was it reasonable. When Ruth Bader Ginsburg admitted that it was bad law, there’s nothing to go out and protest about. Stare Decisis doesn’t make it good and established law. It just adds a layer to protect bad laws, and it’s so good to see the Supreme Court throw out that excuse to keep bad laws. I hope to see them continue down that path.
    An awful lot of law professors and lawyers across the land said it was bad law, at the time it was decided, and never changed their minds, just left it alone to see when it would get overturned.
    Even in the arguments before the Supreme Court, the ones who argued to keep the decision intact, never once argued that it was good law, but that it was “Settled”, or stare decisis perverted. Stare decisis is meant to be used when precedents are just, and Roe wasn’t. It was made in a fantasyland, and Justice Blackmun might as well have been popping peyote while writing his opinion. I’ve heard and read several prominent lawyers and law professors say something along those lines. His comments about “Doctor’s rights”, and the Hippocratic oath are just disgusting.

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