- The Washington Times - Saturday, October 1, 2005

In his recent Senate testimony, Judge John Roberts addressed the judicial doctrine of “stare decisis.” This Latin term means “to stand by things decided.” It also means cases decided by the court enjoy a special cachet. The court doesn’t like to overturn its earlier decisions, except when … well, except when it decides it needs to overturn one of them.

One characteristic of a “conservative” judge is respect for precedent, even if the judge believes a case was incorrectly decided. Judge Roberts’ regard for stare decisis is undoubtedly genuine, but he probably emphasized it to reassure liberal senators he won’t try to overturn their hallowed Roe v. Wade. (Liberals love stare decisis because it protects court-dictated “law” they like but which they know has no chance of being congressionally enacted.)

Judge Roberts has previously said Roe v. Wade was decided on weak grounds. But he says it is “settled law” and reversing it would be disruptive. Ditto for other radical cases. The “cure” of reversal is worse than the “disease” of enduring a wrongly decided precedent.

This reluctance rarely restrains activist justices. They have no qualms about overturning precedent, realigning laws to their social and political vision. But conservatives won’t do so, even if a case was decided on flawed premises, foreign laws or “emanations and penumbras.”

In other words, the game is rigged. Liberals can impose their agenda judicially because they don’t mind roiling the social and political waters. But conservatives rarely correct liberals’ radical activism. Stare decisis makes the court a one-way ratchet.

In “How Stare Decisis Subverts the Law” (June 10, 2000), John Roland — noted author and Founder of the Constitution Society — wrote: “Stare decisis tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level…”

Mr. Roland notes opinions are often treated as law, “even though only the order and findings have the actual force of law, and only in that case.” An opinion is only “commentary.” “A poorly worded opinion can define a set of legal positions that exceed the bounds of the underlying constitutional enactments, and become the basis for future precedents, as though they were constitutional enactments. .. .”

Judge Roberts seems to be a man of principle and exceptional intelligence, but his own words indicate he probably won’t lead the court to correct its radical rulings. These would include:

• A “right” to abortion on demand.

• Blocking state or federal attempts to outlaw “partial-birth abortion.”

• Affirmative action refashioned as racial quotas.

• Banning expressions of faith in public schools and the public square.

• A national right to sodomy.

• Recasting eminent domain to include private property “takings” for commercial instead of only for public use.

After decades of liberal activist courts, stare decisis will prevent a conservative court from reversing past rulings because that might prove disruptive. Thus conservatives are ensnared in efforts to defeat liberalism in the courts.

Conservatives have been winning elections for decades. Seven of the last 10 presidential elections produced Republican presidents. Republicans won the Congress in 1994, ending 40 years of Democratic control.

Despite these conservative successes, the Supreme Court has kept the liberal agenda alive. One reason is “moderate” justices who go liberal after joining the court. But the true villain, as we can now see, is stare decisis. It works as follows:

(1) A liberal court makes a society-shaking ruling like Roe v. Wade.

(2) Years pass with the radical ruling in place.

(3) The court finally becomes conservative enough to reverse the ruling.

(4) When a case arises by which the court could reverse, it defers to stare decisis.

John Roberts sounds conservative, but if his testimony is true — and we have no reason to doubt it — he will not undo past radical rulings. Columnist Charles Krauthammer says he expects a Roberts court to move “slightly leftward” from its present position. We are totally stuck.

What can be done? Mr. Roland believes the court must no longer base decisions on precedents that conflict with the Constitution: i.e., “One who takes an oath to uphold the written Constitution is bound to ignore precedents in conflict with it, and to rest decisions strictly on propositions that are logically derived from constitutional enactments, considering precedents only where they sharpen ambiguities in the language of the written enactments.

“To treat precedents as superior to constitutional enactments is to introduce contradictions into the law. … In any system of logical propositions, acceptance of a single contradiction accepts all contradictions, rendering every proposition logically undecidable. Contrary to the view of some judges, the law must be logical, or it is not law [emphasis added],” Mr. Roland says.

Mr. Roland is a constitutional expert. I defer to his analysis, but I doubt his prescription is practical. Can the court can be repaired by “sounder” justices? Maybe in the long term. But conservatives must realize the cause of a problem cannot also be the solution. Ensnared by its own customs and procedures, the Supreme Court cannot repair itself.

Instead, the people must elect a Congress that will rein in the court. This will require formidable will by voters and their representatives. Constitutional remedies are available, but the court’s liberal apologists spare no effort to prevent their use.

House Majority Leader Tom DeLay was viciously attacked when he suggested impeaching judges who rule counter to the Constitution. Even Supreme Court justices spoke out, breaking a long tradition of not interfering in congressional debates.

Members of Congress who proposed restricting the Supreme Court’s purview — as authorized in Article III, Section 2 — are called “enemies of judicial independence” (though they merely oppose “judicial supremacy”).

Correcting all this will trigger a political battle royal. But I expect the American people — with their collective good sense, courage and will — to prevail and regain their republic.


Woody Zimmerman’s weekly column, “At Large,” runs in the Atlantic Highlands Herald, an Internet newspaper.

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