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Lecture 9: The Supreme Court and Conservative Philosophy

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California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: September 17, 2005
Latest Update: September 17, 2005

E-Mail Icon jeannecurran@habermas.org
takata@uwp.edu

Index of Topics on Site Lesson 9: Have We Really Changed Our Philosophy Towards Poverty?
As we approach a nomination of the next Chief Justice of the Supreme Court, we'll need to be able to find readily access material on liberal, progressive, and conservative political philosophy to understand what's going on. This is the first of my attempts to provide you with this material

Concepts

  • stare decisis - a legal term meaning that one should follow legal precedent, meaning that one should follow the pattern of decisions that have been followed by those judges preceding you - this is primarily reflective of the belief that our law should be consistent and thus be anticipated by everyone. Sometimes there are drastic changes. The Brown decision that said "separate is not equal," the Roe v. Wade decision that affirmed a woman's right to choose abortion. Both of those decisions's are at issue in Roberts' confirmation. Rehnquist was opposed to affirmative action. Roberts' was his law clerk. Roberts is feared to be anti-abortionist, but has avoided much of the Senate's questioning on this and other issues.

    stare decisis Defined on the Lectric Law Library.

    [Stare decisis] is a maxim among ... lawyers, that whatever has been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. — Jonathan Swift, Gulliver’s Travels.

    From How stare decisis Subverts the Law, by Jon Roland. 2000 June 10

  • original position - John Rawls - assumption in his Justice as Fairness that we all start out from the same original position. Hard to get us back to that space, though. Diffficulties with meaurement.

  • an equal playing field - term expressing that we all have the right to start out with some basic necessities in the interest of fairness. Think of "handicapping" in golf.

  • distinguishing a case or position - showing how it is different from the factual pattern in the precedent.

    Or, if you are trying to use the precedent for purposes of stare decisis, then you emphasize the similarity of the fact patterns.

    dissenting opinions - published opinions that disagree with the majority opinion, which although controlling, may not be keeping up with the times. The pattern of dissenting opinions sometimes indicates when judges are ready to break with stare decisis and move to a new perspective, beginning a new line of cases, like Brown.

Discussion Questions

  1. How is stare decisis reflective of different perspectives?

    Consider that before Brown v. Board of Education stare decisis held that Plessy v. Ferguson was the law of our land. Brown did not follow stare decisis and brought in a whole new line of cases. Each line of cases represented a different (almost opposite) perspective on equality, fairness, justice. Pay special attention to dissenting opinions to indicate such a new perspective in the law.

  2. How would you measure the strength of the perspective represented by stare decisis?

    Consider how many cases have cited the precedent case. If it is frequently cited and followed, and has few dissents in the cases that follow, chances are the precedent is strong. Consider also as a measure, the number of dissenting opinions.

  3. I think it was Arlen Specter that said that Roe v. Wade was a superprecedent? What do you suppose he meant by that?

    One plausible interpretation might be that Specter was considering how many cases have cited and followed Roe v. Wade. To rule against a decision still adhered to so strongly by so many in this country would be an unwelcome sign of jusdicial activity for all those who believe in a woman's right to choose, but a very welcome sign to those who are anti-abortion. Is there such a thing as a superprecedent?

    " 'I'm quite certain that Judge Roberts is too diplomatic to say then, in public anyway, what I said in my first post — which basically was 'Did you just make that up, Arlen? What've you been smokin', Senator?' I'm almost as certain that Judge Roberts will resist any attempt — whether from Sen. Specter on the Republican side of the aisle, or from the Leahy-Kennedy-Schumer-Biden wing on the other side — to get Judge Roberts to pre-commit as to how he'll vote when and if Roe, Casey, or any other particular precedents are reconsidered.

    "What I can't predict is whether Judge Roberts will 'play along' with Sen. Specter and pretend that this particular term, or the vague concept that Sen. Specter seems to have associated with it in his own mind, is something that's actually been recognized in prior caselaw of the United States Supreme Court. I'm not suggesting that Judge Roberts be insulting or rude; but I frankly hope he doesn't go very far in humoring Sen. Specter. Because the straightforward, honest, and indisputable fact is that there's no Supreme Court precedent on 'superprecedents.' And I would be enormously surprised — stunned, shocked, dumbfounded — if Judge Roberts doesn't already know that to an absolute certainty."

    From Beldar Blog

    References

    • Ready? Cue the Sun By David Brooks, The New York Times, September 15, 2005. At p. A27. Backup A very funny vision of the Senate Hearings on Roberts.



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