Patterico's Pontifications

1/23/2008

A Paean to (Liberal) Precedent at the Los Angeles Times

The L.A. Times tells us that Roe is a landmark ruling — and we must follow precedent, precedent, precedent:

That appalling possibility [a reversal of Roe] should trouble all the justices, but particularly Roberts. For him to overturn Roe would be to contradict his stated devotion to precedent and to turn his back on his mentor, former Chief Justice William H. Rehnquist. In Dickerson vs. the United States, which challenged whether suspects must be read their Miranda rights for their statements to be admissible in court, Rehnquist wrote for the majority in 2000 that regardless of whether justices supported the original Miranda decision, it had become “part of our national culture” and therefore deserving of protection. Roe, in the same way, created a now well-established right that would cause severe upheaval if it were overturned.

Sadly, too many conservatives attack judicial activism, then practice it.

Luckily, the L.A. Times is consistent. For example, when the Supreme Court overruled Bowers v. Hardwick in Lawrence v. Texas and struck down a law criminalizing homosexual sodomy, the paper’s editors stood for precedent. They aren’t hypocrites who invoke precedent only when it serves the liberal agenda. They stood foursquare behind the principle of stare decisis.

Oh, wait . . . they didn’t.

I’m shocked!

8 Comments

  1. Since they are such champions of stare decisis, I suppose they also were against the overturning of Plessy.

    Comment by Fritz (13ab3e) — 1/23/2008 @ 11:02 pm

  2. “For him to overturn Roe would be to contradict his stated devotion to precedent and to turn his back on his mentor, former Chief Justice William H. Rehnquist.”

    For John Roberts to follow his mentor, former Chief Justice William H. Rehnquist, on Roe would be strike it down at the first opportunity.

    It’s a red flag when C says that A ought to follow B, when B is A’s parent, a teacher or something like that, and then C does a strained, tendentious and abstract description of what B did. The sneaky walk away from the practical issue in dispute is a signal that we ought to look at B’s own expressed and demonstrated view on the topic.

    Generally it turns out that C is an enemy of what B stood for, and C would like A to betray B’s legacy while pretending to preserve it.

    Comment by David Blue (7104ea) — 1/24/2008 @ 12:05 am

  3. Fritz: I think the Times’s view on stare decisis is “what’s mine is mine, what’s yours is negotiable.”

    David: You have a point, but then again, it really would suck for Roberts to turn his back on his former mentor by voting too much like his former mentor.

    Comment by Xrlq (b65a72) — 1/24/2008 @ 4:05 am

  4. ‘rico ‘rote: The L.A. Times tells us that Roe is a landmark ruling — and we must follow precedent, precedent, precedent:

    I saw this line as I was scrolling down, and instantly knew that this would be another example of editorial duplicity as illustrated by the MSM’s en masse applause as Lawrence overturned Bowers.

    And I ain’t even a lawyuh.

    Comment by L.N. Smithee (e1f2bf) — 1/24/2008 @ 10:30 am

  5. I love how judicial activism is reduced to simply overturning precedent.

    It is staggering to witness how liberals, in general, set and define an agenda based on false premises, and get away with it.

    The constructionists simply must fire back with full force as to what activism really is. Otherwise, we’ll lose a perfectly good and effective concept.

    In any event, I look forward to the LAT editorial lamenting the loss of Dred Scott as controlling authority in U.S. jurisprudence.

    Comment by Ed (1f3def) — 1/24/2008 @ 12:33 pm

  6. The comparison of Roe to Miranda (and thus of a case inviting the court to overrule the former to Dickerson) is quite a stretch. While Roe is deeply embedded in our national consciousness, to be sure, it’s so embedded as one of the most controversial issues in political discourse, and remains a bitterly-fought point of contention between large segments of our society. I’m unaware of any Pew survey finding almost 30% of the country in favor of overruling Miranda thirty five years after its decision, and whether a candidate would appoint Justices who would or would not overrule Miranda is not and never was a litmus test for both major parties in selecting Presidential candidates, as Roe was and remains today. Thirty five years after Roe was decided, Scalia’s description of it in Casey remains vividly accurate: it “fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Far from becoming less controversial with the passage of time, as did Miranda, public hostility to Roe and its progeny has if anything grown, both in both numbers and intensity. Even if one takes Dickerson seriously, its reasoning is hardly applicable to Roe. It seems to me that the only comparison that can really be drawn is not to Miranda, but to Plessy – I’m unaware of any other decision that inspired such sustained and visceral disagreement among the general population that was not subsequently resolved extrajudicially (Chisholm was vitiated by the 11th Amendment; Pollock by the 16th Amendment; and Dred Scott by four years of blood and steel).

    Comment by Simon Dodd (fb192d) — 1/24/2008 @ 12:54 pm

  7. Patterico:

    So is it all right if I supported Lawrence v. Texas overturning Bowers… and also support the overturning of Roe at the earliest possible moment?

    Dafydd

    Comment by Dafydd ab Hugh (db2ea4) — 1/24/2008 @ 3:44 pm

  8. This was accurately described a while back as “the liberal ratchet.” Movement in the liberal direction is “progress”, while movement in the conservative direction is “turning back the clock.”

    Comment by Kevin Murphy (805c5b) — 1/24/2008 @ 3:45 pm

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