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Lady Justice Is in Charge
The Left has a reason—in fact, several reasons—to be upset. Many years of abusing the understanding and application of the Constitution is coming to an end with President Trump about to nominate a new Supreme Court justice. With the high excitement emanating from the Right, and the hysteria swirling from the Left, I wanted to make sure I understood what the stir was about. In doing a little homework, I made some interesting discoveries.
Daniel Henninger at the Wall Street Journal provided an insightful explanation for the significance of this opportunity to put a traditionalist on the Supreme Court. He used the word “penumbra” as a way to illustrate how and when the interpretation of the Constitution began to change. The dictionary definition of penumbra, which I thought most closely resembled his application of the word was, “a surrounding or adjoining region in which something exists in a lesser degree: fringe.” [emphasis is mine] Henninger said about the 1965 Griswold v. Connecticut decision:
Supreme Court decisions don’t often produce phrases that enter the vocabulary of political life, but Griswold did. The phrase is ‘penumbras formed by emanations.’
Griswold is worth recalling because it established a right to privacy, though the Constitution says nothing about any such right. Justice William O. Douglas famously explained how this could be, arguing that ‘specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.’
Douglas’s ‘penumbras’ decision, though ridiculed, defined the post-’60s era of ‘judge-made law,’ in which achieving a result that reflected liberal values or policy goals mattered more than the legal reasoning to justify it. This results-driven view is what routinely sent Justice Antonin Scalia into eloquent and volcanic dissents.
That decision changed the approach to Supreme Court decisions for the next 60 years. Liberals on the court decided that they could legislate from the bench; it was no longer necessary to tie decisions to the Constitution. A majority of the Court only needed to identify cultural norms, not Constitutional authority, to justify their decisions.
To change the Constitutional interpretations for the culture of the time, stare decisis would also play a key role in future decisions. @columbo posted an excellent piece on Roe v. Wade, and the possibility of that ruling being reversed, but other cases may also be reconsidered, depending on how a justice interprets stare decisis.
Here is a formal definition of stare decisis:
According to the Supreme Court, stare decisis ‘promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.
In addition, it appears that the Court may have had political motivations for creating the rule of stare decisis:
. . . we argue that judges, desirous of increasing their policy-making authority, fostered stare decisis as a way to legitimize the judiciary and to insulate it from outside political attack. By doing so and by promoting the idea that judging is driven by neutral, legal considerations, rather than by politics, the judiciary gained a strengthened presence in the American political system. This argument is consistent with McGuire’s (2004) analysis, which indicates that as the Court institutionalized itself within the system of federal policy-making justices were better able to achieve their legal and policy objectives. It is also consistent with some historical work on the Marshall Court era, which contends that Chief Justice Marshall emphasized the rule of law as a way to bolster the Court’s authority (Knight and Epstein 1996b; Newmyer 1985).
How the politics of the Court will play out in the future is open to conjecture. But as one writer has said:
To be sure, stare decisis is a venerable doctrine in American law. But it is not the only venerable doctrine. As Justice Clarence Thomas once observed, ‘stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.’ Put differently, in a clash between legal precedent and constitutional text, shouldn’t judges put the Constitution first?
Given that earlier decisions have been loosely based on the Constitution, if at all, the new Court may very well feel inclined, if not obligated, to reverse poorly designed decisions.
The last factor that appears at first glance to be daunting is the threats from the Left, ranging from delaying the approval process to the downfall of the US as we know it. Instead of the Left gaining credibility with their hysteria, their predictions of impending disaster sound ludicrous. If you’d like examples of the statements they’re making, you can go here.
I’d like to end with a comment by Supreme Court Justice Neil Gorsuch at a dinner held in honor of the late Justice Antonin Scalia:
Tonight I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court of the United States, Gorsuch said. Originalism has regained its place at the table … textualism has triumphed … and neither one is going anywhere on my watch.
We’re counting on you and your colleagues, Justice Gorsuch.
An excellent piece yourself, @susanquinn!
Thank you for the in depth and excellent review. (and all of the links – Fred Cole will be pleased – I don’t feel like a troll, and yet, there I go). I am awaiting Trump’s nominee announcement with eager, and cautious optimism.
The left is well aware of how poorly-reasoned decisions can be overturned by looking at Dred Scott and Plessy. They know Roe v. Wade was a bad ruling, hence the hysteria over the next Supreme Court nominee. A precedent should only be respected if it is a good one.
However, overturning Roe v. Wade would merely return abortion to the states. Liberal donors are free to set up foundations to provide free transportation for pregnant women to travel from a abortion-restrictive state to
a slaughterhouseone that makes abortion easy.That makes at least two of us, @nohaaj! ;-)
I suspect those are the ways it will go, @stad. At least some justice may be done. Thanks.
Susan, thank you for all the research (and the links). If I recall correctly, my first exposure to the word penumbra was in reference to the sun. In certain atmospheric conditions it appears as if the sun is larger than it normally appears due to a halo-like effect called a penumbra. In other words, a penumbra lets one see something that’s not actually there.
You are correct, @jimmcconell! A perfect synonym for the logic of the liberal Court, too, don’t you think?
Given that “Transporation” meant “punishment” to 17th and 18th Century Britons and Irish, I wholeheartedly approve of your plan.
I think a penumbra is basically the fuzzy part of a shadow, due to the bending of light around the edges of whatever’s casting the shadow.
That’s what I learned in 3rd grade at least, and had reinforced by high school physics.
Edit: Wiki agrees with me: https://en.wikipedia.org/wiki/Umbra,_penumbra_and_antumbra
Okay! I’m afraid I’ve pretty much exhausted my understanding of it, @dnewlander, so you could tell me it’s a five o’clock shadow and I couldn’t argue! ;-)
LOL
The democrat statists have hanged their hat on ‘workarounds’ to the law for a long time. They know their agenda would never pass a straight up vote, nor get them elected. So they obfuscate their intent and then use end around procedural tricks to enact their agenda. I blame FDR most of all, he seems to have ensconced the practice in the party with his attempt to pass his clearly extra-constitutional programs like Social Security by packing the supreme court with like minded outcome based liberals. He didn’t succeed in packing the court, but he did succeed in getting them to rubber stamp his constitutional overreach.
That has worked pretty well for them. In the same spirit Obama used his pen and phone to subvert law and the legislative process for his own policy agenda’s ends.
But now what goes around comes around. Anything enacted by such a workaround is temporary, since the same kind of workaround is available to the opposition when they take power. That is why the statists are in a rabid fever over Trump and his supreme court nominees. The house of cards they build their platform on is in existential danger.
Thus, suggesting the nomination of a justice who would faithfully interpret the constitution is to the progressives like raid to a cockroach in the commercials. To allow a justice to do that would be to lose everything they have achieved towards their agenda. The biggest obstacle to their world view and policy agenda has always been the Constitution of the United States of America!
MJBubba proposed that an Amendment would establish a legal right to privacy apart from historical rulings to undercut any pretense of penumbras and such.
The Left does not believe in stare decisis. Every Amendment and act of legislation they applaud overturned precedents. It is sophistry. The Left has no consistent philosophy beyond a willful determination that ends justify means.
Well, when one of their sacred cow decisions like Roe is in danger, stare decisis is sacrosanct. But let a precedent stand in the way of their latest attempt to expand their power and it is quickly jettisoned. “If it wasn’t for double standards, they would have no standards at all!” (C. Plante)
I’m with MJBubba: if we want there to be a right to privacy, there is a legal way to do this.
When it comes to stare decisis (and I am speaking out of virtual whole ignorance, here) it seems to me that there could be occasions in which a law that was made at one time and found to be Constitutional gets revisited and overturned because the present court has information unavailable to the original court, or some external situation has changed so that the original law and reasoning is rendered moot?
I’m thinking, here, of advances in fetology and neonatology, but I’d imagine it might have arisen in other contexts before now?
I think David French made a good point in the most recent Ordered Liberty episode: To date Roe v. Wade has prevented the left from having to defend abortion itself. They’ve convinced themselves that there’s nothing pro-lifers can do about it, so why bother justifying their position. In a Roe-free world, they will have to actually defend the legality of abortion on a moral level, and deep down inside French (and I) suspects that many of them are well aware that they can’t.
True.
That’s what I love about the new “players” in the D party, like Bernie and that chick from New York, who are openly embracing their inner Socialist. After a couple sound thumpings I think they’ll all crawl back under their rocks and perform their machinations in the dark like they’re used to doing.
I agree, @phenry! And there is more to come outside of the Court. Finally, the rule of law may start to matter.
Ah, but dontcha know, @aaronmiller, that the nominee will be raked over the coals to support stare decisis–now. They don’t want the court tampering with all the nonsense that was approved. Too bad.
I’m for Amy Barrett. I know nothing, but I can’t resist rooting for an unapologetic Catholic with 7 children Any woman with 7 children who rose to become a big shot judge has to be better than anyone else Heck, any woman who has raised 7 children is probably a superior being to begin with
Go Amy!
I believe there is a vast difference between defending legally and morally. I do not think it is possible to truly, deeply think about a pregnancy/fetus/conception of life and morally defend abortion. The left doesn’t think about it morally. They can’t, because they do not want to accept the logical and moral result of a critical analysis. When does life begin? Why is it acceptable to perform abortions after x days, but not x+1minute? Why not partial birth abortions, why not post birth abortions, why not grammar school troubled kids abortions? Really, There are a few kids, (maybe even one of my own) where that thought didn’t briefly flash in my mind!. (too dark, I know…)
Legally, they can manipulate the law and the legalize and the precedent, and never think about the humanity and morality of their actions. They will not defend the morality of abortions, only their view of the legality of it.
I know that for those of us who accept that it is the termination of human life, there is no justification that makes it moral.
I also know enough feminist lefty types to know that they justify it morally by denying that there is any human life involved. It is a clump of cells, a product of conception, or some other scientifically couched definition that means it is not a person.
On that basis they do defend the morality. To them, it is immoral to deny a woman the right to abortion, and not immoral to have one!
As in the justifications for slavery, once you deny the humanity of the ‘object’ there is no moral question left.
It’s new to me, too, @katebraestrup. There are many reasons to reverse a decision and you point to one of them. Others are that it was a very poorly argued decision, and may not survive due to lack of merit. But you can be sure the Left will not care whatever justification they try to make on Roe v. Wade; new, good information won’t count.
Or the right of a woman to destroy a life–er, have power over her own body . . .
Very nice parallel there.
When the law is allowed to classify some humans as “not people,” it never ends well.
Well said. Sadly.
Good post. R v Wade decision politicized the court and opened the door ever wider for a “living constitution” Stare decisis comes from common law and should ‘t apply to written text except where the text lacks clarity or change requires new interpretation, e.g. what is a weapon, a tank? a nuclear device? how about searching in the digital electronic age? However, the constitution was designed around understanding of human nature which hasn’t changed so most of the text is relatively unambiguous and should guide decisions. The decision must be overturned as should Chevron precedent of deferring to regulatory agencies. Judge Gorsuch like Scalia would also begin go after that abominable practice. We need another like Scalia and Gorsuch replacement for Kennedy and then another with RBG. Undoing those two approaches moves us back toward republican government and the rule of law which was what the constitution was all about. What do we know about the short lists views on Cheveron?
Great Post Susan! The debate over stare decisis vs strict construction of the Constitution has far more ramifications that most realize. The effects of legislating from the bench have been so extensive, wide ranging and consequential it’s unbelievable. Peeling back all those bad decisions from decades past would dramatically change American life for the better. So let’s get to it and get another ‘textualist” on the Court.
My husband just forwarded an email to me of three quotes from Democrats about the Constitution. I don’t know how to verify them so I can’t write an OP, but I’ll share my favorite which I think is a true quote from Elizabeth Warren:
“We need judges to be advocates of progressive laws, not people who will bow to the whims of the Constitution, pitting its extremist values of freedom of speech and freedom of religion against our agenda. “
Don’t you love it?!