RIP: Stare Decisis

In a ruling yesterday that all sides of the abortion debate agree has changed the legal landscape of this issue, the Supreme Court voted by narrow majority to uphold the 1993 federal Partial Birth Abortion Ban Act.

CNN’s Washington Bureau described the decision thusly:

The sharply divided 5-4 ruling could prove historic. It sends a possible signal of the court's willingness, under Chief Justice John Roberts, to someday revisit the basic right to abortion guaranteed in the 1973 Roe v. Wade case.

As many of us at BlueNC are probably aware, the Supreme Court has historically held that the life and health of the mother is a critical determinant in upholding or overturning abortion laws.

Here again, CNN sums it up for us:

The legal sticking point was that the law lacked a "health exception" for a woman who might suffer serious medical complications, something the justices have said in the past is necessary when considering abortion restrictions.

On April 18, 2007 our Bush-ified Supreme Court threw history out the window.

More below the fold

While there is little surprise that our “new” Court ruled in this manner, I cannot help but think back to the confirmation hearings for Chief Justice John Roberts. I spent several days furtively streaming C-SPAN on my office computer to watch the Senate Judiciary Committee question Roberts. Watching these hearings, I, along with many Americans, learned a new phrase: Stare Decisis.

Roberts told Sen. Dianne Feinstein, D-California, he would judge any challenge to Roe according to the principle of stare decisis, latin for "stand by a decision," meaning courts are bound by previous decisions, or precedent.


Roberts cited Planned Parenthood v. Casey, the 1992 Supreme Court decision that affirmed Roe, as the starting point in his deliberations if a case challenging the landmark ruling came before him.

"Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis," Roberts said.

I should have felt relieved to hear Roberts declare his respect for precedent and specifically for Casey, but instead I felt skeptical, if not leary. How would we know this to be true until Roberts was already on the Court…and if it turned out to be untrue, wouldn’t it be too late?

Apparently, I wasn’t the only skeptic.

On Tuesday, Supreme Court chief justice nominee John G. Roberts proclaimed time and again his respect for stare decisis, particularly in response to the Senate Judiciary Committee members' questions about Roe, privacy, and a woman's right to choose. But as history has shown, vowing support for stare decisis and respect for precedent is often nothing more than a smoke screen, shielding a nominee from answering critical questions.

So, here we are, a little more than 18 months later, with the first major Supreme Court ruling on an abortion rights case in nearly a decade and Roberts’ ultimate gut check: are you with Stare Decisis or are you against it? Do you really believe that Casey should be respected as precedent like you promised…or were you just trying to get a job?

Roberts actions speak much louder than his words. Stare Decisis be damned…right along with our ability to make private decisions with our physician.

I’ll go out on a limb and suggest that our progressive corner of the tubes did not suffer shock waves when this decision was announced. And the intent of this diary is not to belabor a point we are all-too aware of: Bush’s legacy is the Courts and building a nice Conservative SCOTUS was his thank you note to the wingers who put him in office.

My point today is to remind us all why re-electing our Democratic Majority, restoring a Democrat to the White House in 2008 and expanding both houses of Congress to a “super majority” is our only option to realign the courts and to enact legislation that protects the private health decisions of all Americans.

Let’s honor the memory of our dear departed friend, Stare Decisis, and vow to never again leave the care of another beloved legal precedent hanging on the empty promises of a Republican-appointed Justice.

RIP Stare Decisis…we didn’t know how much we’d miss you until you were gone.


I just wrote a paper

on a supreme court case. Some of the same justices that in that case harassed the side I thought was correct for not having proper respect for stare decisis are now the ones telling it to go to hell.

Its disgusting. Hypocritical bastards.

Draft Brad Miller -- NC Sen ActBlue :::Liddy 44 Brad 33

"Keep the Faith"

Laws are for changing

And the law that SCOTUS upheld should be changed in Congress now. I'm assuming that effort is underway. It damn well better be.

Great post. Recommended.

Ginsberg's dissenting opinion

addresses the issue of precedent, although she does not use the phrase Stare Decisis

[Ginsberg] said the majority's opinion "cannot be understood as anything other than an effort to chip away a right declared again and again by this court, and with increasing comprehension of its centrality to women's lives."

emphasis mine

Larry Kissell is MY Congressman