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7x57
01-24-2010, 2:34 PM
I preface this by saying that the article below discusses stare decisis in the context of Roe v. Wade. It is my wish that the thread not wander in that direction because it will invoke some sort of Godwin's Law-like rule. We can do that in Offtopic if necessary.

This article

http://newsmax.com/InsideCover/johnroberts-supremecourt-abortion-roev-wade/2010/01/24/id/347808

suggests something to me that didn't seem to occur to the author.


Moreover, when Roberts mentions a need to “curtail the precedent’s disruptive effects” and imagines instances in which a “precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases,” the “hotly contested” Roe decision, which 37 years ago disrupted the abortion laws of all 50 states, cannot help but come to mind.


Perhaps, but what leaped to my mind was the disruptive effects of Slaughterhouse (is not the legal basis of segregation by definition disruptive?) and the the "hotly contested" nature of its validity (assuming "stark raving mad" is a kind of contest--actually "agreed by nearly all to be ridiculous" is surely worse than contested).

So the author thinks it signals a willingness to overturn Roe v. Wade. Whatever the truth of that may be, with McDonald before the court with Gura's brief giving pride of place to restoring the P&I clause, might it not signal a willingness to do just that?

Once again, it is my wish that my thread not become pointless speculation about abortion when it could remain pointless speculation about guns. :rolleyes:

7x57, "isn't pointless speculation about guns a key purpose of Calguns?"

hoffmang
01-24-2010, 2:44 PM
Comparing McDonald or Citizens United is tough. Stare Decisis that is wrong on the text of the constitution isn't stare decisis. Only part of McDonald rests on the unenumerated right to self defense. Roe rests on the unenumerated right to privacy. Unenumerated rights are going to have different jurisprudence.

-Gene

bulgron
01-24-2010, 4:01 PM
Comparing McDonald or Citizens United is tough. Stare Decisis that is wrong on the text of the constitution isn't stare decisis. Only part of McDonald rests on the unenumerated right to self defense. Roe rests on the unenumerated right to privacy. Unenumerated rights are going to have different jurisprudence.

-Gene

Roe can be recast in the unenumerated right to self-defense, if necessary. In fact, I believe Planned Parenthood filed an Amici in Roe which made that very argument.

In any case, what I see the Roberts court doing so far is ignoring Stare Decisis if doing so allows them to advance issues of liberty. I hope I'm not wrong about this, because if I'm not then we'll see the 2A incorporated and Roe left untouched.

hoffmang
01-24-2010, 4:27 PM
Roe can be recast in the unenumerated right to self-defense, if necessary. In fact, I believe Planned Parenthood filed an Amici in Roe which made that very argument.

In any case, what I see the Roberts court doing so far is ignoring Stare Decisis if doing so allows them to advance issues of liberty. I hope I'm not wrong about this, because if I'm not then we'll see the 2A incorporated and Roe left untouched.

I was going to mention the self defense nature of Roe but wanted to stay more to the point about the difference between enumerated and unenumerated rights. Unenumerated rights require a different analysis.

I don't see a turn away from the Stare Decisis of a decision (Slaughterhouse) that is wrong on its face means much for a decision that is not in conflict (Roe), and may be in harmony, with the text of the constitution.

-Gene

CaliforniaCarry
01-24-2010, 5:31 PM
Is there a chance that this decision will encourage future courts to also be just as bold, perhaps courts that aren't as conservative? My fear is that a future liberal court would now able to justify reversing Heller or other gun rights wins, based on the idea that it's "bad precedent" and that Stare Decisis doesn't apply because the decision was incorrect.

bulgron
01-24-2010, 5:36 PM
Is there a chance that this decision will encourage future courts to also be just as bold, perhaps courts that aren't as conservative? My fear is that a future liberal court would now able to justify reversing Heller or other gun rights wins, based on the idea that it's "bad precedent" and that Stare Decisis doesn't apply because the decision was incorrect.

I've always felt that a liberal court is way more likely to ignore Stare Decisis than a conservative court, so I don't see why this ruling makes any difference in that regard.

Basically, it will be really bad if the liberals get the majority at any time in the next 20 or 30 years.

dantodd
01-24-2010, 5:47 PM
I think the difference is that there is plentiful jurisprudence which was essentially ignored in the previous cases overturned by CU v FEC. With McDonald there is really only one case that is in question and it has been navigated around by many an able attorney in the past and surely SCOTUS could selectively incorporation and avoid Slaughter Houses completely. I think that overturning bad precedent in favor of an OPM or OI interpretation of the Constitution is a far better solution than intellectual contortionism to save stare decisis while adjudicating fairly. (i.e. if it's bad caselaw chuck it don't try to sneak around it so that you can do what's right without upsetting the applecart)

Not sure if this has been discussed as well but reason had a blog post about this too. http://reason.com/blog/2010/01/22/citizens-united-stare-decisis