Comments on: A Paean to (Liberal) Precedent at the Los Angeles Times http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/ Harangues that just make sense Thu, 04 Dec 2008 05:24:54 +0000 http://wordpress.org/?v=2.6.5 By: Kevin Murphy http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315871 Kevin Murphy Thu, 24 Jan 2008 23:45:45 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315871 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." 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.”

]]> By: Dafydd ab Hugh http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315870 Dafydd ab Hugh Thu, 24 Jan 2008 23:44:12 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315870 <b>Patterico:</b> So is it all right if I supported Lawrence v. Texas overturning Bowers... and <i>also</i> support the overturning of Roe at the earliest possible moment? Dafydd 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

]]> By: Simon Dodd http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315859 Simon Dodd Thu, 24 Jan 2008 20:54:58 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315859 The comparison of <i>Roe</i> to <i>Miranda</i> (and thus of a case inviting the court to overrule the former to <i>Dickerson</i>) is quite a stretch. While <i>Roe</i> 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 <a href="http://pewforum.org/docs/?DocID=91" rel="nofollow">finding almost 30% of the country in favor of overruling <i>Miranda</i> thirty five years after its decision</a>, and whether a candidate would appoint Justices who would or would not overrule <i>Miranda</i> is not and never was a litmus test for both major parties in selecting Presidential candidates, as <i>Roe</i> was and remains today. Thirty five years after <i>Roe</i> was decided, Scalia's description of it in <i>Casey</i> 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 <i>Miranda</i>, public hostility to <i>Roe</i> and its progeny has if anything grown, both in both numbers and intensity. <a href="http://stubbornfacts.us/law/taking_dickerson_and_hibbs_less_seriously" rel="nofollow">Even if one takes <i>Dickerson</i> seriously</a>, its reasoning is hardly applicable to <i>Roe</i>. It seems to me that the only comparison that can really be drawn is not to <i>Miranda</i>, but to <i>Plessy</i> - I'm unaware of any other decision that inspired such sustained and visceral disagreement among the general population that was not subsequently resolved extrajudicially (<i>Chisholm</i> was vitiated by the 11th Amendment; <i>Pollock</i> by the 16th Amendment; and <i>Dred Scott</i> by four years of blood and steel). 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).

]]> By: Ed http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315855 Ed Thu, 24 Jan 2008 20:33:05 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315855 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 <i>Dred Scott</i> as controlling authority in U.S. jurisprudence. 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.

]]> By: L.N. Smithee http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315850 L.N. Smithee Thu, 24 Jan 2008 18:30:43 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315850 'rico 'rote: <i>The </i>L.A. Times<i> tells us that Roe is a landmark ruling — and we must follow precedent, precedent, precedent:</i> 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 <I>Lawrence</i> overturned <i>Bowers</i>. And I ain't even a lawyuh. ‘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.

]]> By: Xrlq http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315815 Xrlq Thu, 24 Jan 2008 12:05:17 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315815 Fritz: I think the <i>Times's</i> view on <i>stare decisis</i> 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. 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.

]]> By: David Blue http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315804 David Blue Thu, 24 Jan 2008 08:05:02 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315804 "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. “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.

]]> By: Fritz http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315802 Fritz Thu, 24 Jan 2008 07:02:41 +0000 http://patterico.com/2008/01/23/a-paean-to-liberal-precedent-at-the-los-angeles-times/#comment-315802 Since they are such champions of stare decisis, I suppose they also were against the overturning of Plessy. Since they are such champions of stare decisis, I suppose they also were against the overturning of Plessy.

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