Should previous rulings be left intact even of the original ruling was unconstitutional?
The liberals’ sudden solicitude for stare decisis meaning the doctrine of standing by precedent . stare decisis were absolute, we’d still have de jure segregation.
Is it because they are afraid this court would toast abortion??? Or is it because they are a bunch of whiners?
The new conservative majority at the Supreme Court seems to have everyone on edge. That is evident following the decision of the Nine to overturn a precedent on the question of whether the Constitution — as Justice Clarence Thomas put it in a majority opinion — “permits a State to be sued by a private party without its consent in the courts of a different State.“ The court, which had said yes in 1979, now says no.
It’s not the ruling itself that has everyone in a dither. It’s the blitheness with which the conservatives on the court turned out to be prepared to overturn a precedent. Justice Stephen Breyer, writing for the four liberals on the bench, ended his dissent with a blunt warning. “Today’s decision,” he wrote, “can only cause one to wonder which cases the Court will overrule next.”
Which cases, indeed. “The Right-Wing Supreme Court Is Coming for Roe v. Wade ,” is the headline on Splinter.com. The Liberals are “warning us” that Roe is in “mortal danger,” booms the Washington Post. The New York Times is rushing out an op-ed piece by law professor. “The Supreme Court made clear on Monday that Roe v. Wade may soon no longer be the law of the land,” it begins.
Forget that the case has nothing to do with Roe v. Wade (even the Times concedes that). The liberals’ sudden solicitude for stare decisis — meaning the doctrine of standing by precedent — is almost weird. If stare decisis were absolute, we’d still have de jure segregation and the liberals would be locked in the Lochner Era, meaning the years when the Supreme Court protected unbridled economic liberty.
Those eras — to cite but two — were ended when the Supreme Court overturned precedents. The liberals were tickled pink (as were we in the case of desegregation). So the sudden liberal drum-beating for stare decisis is all too situational for our taste. Someday the Court may well decide that Roe v. Wade was so wrongly decided as to be unprotected by stare decisis , and that abortion can be, as it was for so long, left to state legislatures.
Our own view of the case that set off this panic is that it was important in and of itself, without all the angst over abortion. The case, known as Franchise Tax Board of California v. Hyatt , threw out a precedent that allowed private parties to sue a state in another state’s courts. It’s fascinating that Chief Justice Roberts assigned to write the majority opinion the Court’s most profound justice, Clarence Thomas.
Justice Thomas channels what his latest biographer, Myron Magnet, calls the “lost Constitution.” The phrase has been rattling around our brain since we first read Mr. Magnet’s manuscript. It connotes to us the original intent of the Founding Fathers, a view of our constitutional structure from which we’ve drifted away. In Franchise Tax Board , Justice Thomas went back to the founding era.
What he concluded is that the “States retain their sovereign immunity from private suits brought in courts of other States.” The 1979 court, the majority came to see, had misread the history. Allowing state courts of one state to try another state poses, in our federal system, a contradiction that ought to be as horrifying to liberals as to conservatives.
Just imagine — if only that — Governor Cuomo, say, being haled into court in Mississippi over, say, a gun control feud. Or Texas being held by a New York court to New York precedents on abortion. In our parlous times we could end up in a legal civil war. So, we say, don’t panic. For matters that require a national or interstate standard, suing in another state to state is illogical. Better to turn to the Congress and the federal courts. It’s for what they’re there.