I just got of an excruciating CLE, so this will have to be short.
I haven't read the recent controversial Supreme Court decision on partial birth abortion (or as those who wish to gloss over the brutality of the procedure like to call it "D & X"), which I believe puts me on equal footing with the pinheads on the Strib editorial board. Instead of going down the whole abortion debate road and risk getting 50 comments from some dumbass "feminist" quoting the DSM-IV, I'll just stick to the Strib's shifting standards of jurisprudence. To the extent they can be called standards.
Editorial: An insult to women, and the Constitution
The new Supreme Court flouts precedent -- and plain logic.
Tradition just isn't what it used to be -- at least not in the U.S. Supreme Court. In the old days -- that golden time when a Republican named Sandra Day O'Connor sat on the court -- justices regarded the decisions of years past as the foundation for rulings to come. Principle nearly always trumped politics, and long-settled law stirred reverence rather than scorn.
As a real quick aside to my main purpose here, when the Strib finally gets around to its point, be sure to note which side it sees as "principled" and which is "political". And then laugh hysterically at their hubris and unintentional irony.
No longer is it so.
Really keep that sentence in the front of your head, so as to fully feel the bloody assault that I am about to visit on the Strib's version of "plain logic".
On Wednesday, the high court shrugged off three decades of precedent to conjure a conclusion that defies logic and law.
Aha! We're talking about the doctrine of stare decisis here. That is, prior decisions bind present cases.
So, let's revisit that sentence I asked you to remember and paraphrase it as it is now informed by that last sentence, so as to allow you to actually see in three dimensions the blood and sinew that will emanate from this editorial once I deliver a single death blow of fact to its pitiful little head:
Unlike its glorious predecessors, the Roberts Court has flouted "tradition" for "politics" by abandoning stare decisis.
The question at hand? Abortion, of course.
When President Bush replaced the retiring O'Connor and, soon after, the court's late chief William Rehnquist, his keenest wish was to appoint justices hostile to the landmark 1973 ruling on abortion rights. On Wednesday, the new appointees delivered as desired -- upholding a federal ban on a particular surgical technique occasionally used in second-trimester abortions.
To be fair to the Court, it is a barbaric technique that ought to be banned even if men could bear
The ruling's disdain for precedent couldn't be clearer.
Oh, you know what's coming, don't you? (Cue Jaws music)
A number of lower courts have reviewed the 2003 law barring use of intact dilation and extraction -- a method its critics provocatively call "partial-birth abortion" -- to terminate a pregnancy.
(Jaws music tempo increases, growing louder)
All declared the law unconstitutional -- in keeping with the high court's own rulings.
Da dunt da dunt da dunt daduntdaduntDADUNTDADUNT....
That's the No. 1 oddity of the case decided Wednesday: In truth, it has already been answered. Just seven years ago, the Supreme Court voted to strike down a Nebraska abortion ban virtually identical to the 2003 law passed by Congress.
(Making a comical-looking shark mouth with my arms)
I wonder what the Strib thought about Lawrence v. Texas? Declaring that state anti-sodomy laws were unconstitutional, LvT directly reversed the precedent set in Bowers v Hardwick a mere decade and a half earlier.
Does anyone think that anyone sitting around that conference table in the Strib Editorial Lab shot out of his or her chair stabbing a stubby index finger in the air decrying the courts infidelity to stare decisis?
I seriously seriously doubt it.
And of course, had Jimmy Jam Boyd, Steve "Hertz" Berg and the rest of the crew been around when Brown v. Board of Education was decided, I'm sure we would have seen a sternly worded editorial decrying the Court's stubborn refusal to follow Plessy. Maybe they would have even referred to Thurgood Marshall as a n!gg3r.
Right? Plessy was, after all, precedent.
UPDATE: I've always felt uncomfortable supporting an argument with assumptions - even ones as safe as the one I used here (i.e. the Strib editorialists would have hailed - not criticized - the avoidance of stare decisis in certain cases, when it suits their biases). Initially, I was unable to find the fawning editorial that I'm sure they wrote when Lawrence hit the papers. Since the Strib scrubs their archives frequently, I used the Wayback Machine search engine to attempt to find it. Unfortunately, it found no pages cached during the relevant time period.
Well, I had a little time to do some extra googling. I found the editorial the Strib wrote about the case reproduced on another site, and - well - just read:
In a long overdue action, the high court rendered sodomy laws moot. The justices in a 6-3 decision rightly reversed the court’s 1986 ruling that allowed states to punish homosexuals for so-called deviant sex. On Thursday they struck down a Texas ban on gay sex, ruling that the law was an unconstitutional violation of privacy.
So, back in 2003, stare decisis wasn't quite as relevant as it apparently is today. Of course, the same can be said about the Strib.