Friday, June 29, 2007

Stare decisis crisis

Liars: During their Senate hearings, John Roberts and Samuel Alito portrayed themselves as committed to the principle of stare decisis. Now we know for certain, they were as dishonest as the all-time presidential prevaricator who nominated them.

Disturbingly, John Roberts's and Samuel Alito's actions on the Court now speak much louder than their words to Congress. During the past year, Roberts and Alito have repeatedly abandoned the principle of stare decisis, and they have done so in a particularly insidious manner. In a series of very important decisions, they have cynically pretended to honor precedent while actually jettisoning those precedents one after another.
In the latest ruling from the Supremes, Parents Involved in Community Schools v. Seattle School District, Chief Justice Roberts:
...held that the consideration of race by school districts in assigning students to public schools in order to promote racial diversity violates the Equal Protection Clause, even though the Court had unanimously declared more than thirty-five years ago that such a policy "is within the broad discretionary authority of school authorities."
As Justice Breyer rightly asked in dissent, "What has happened to stare decisis?" Breyer correctly observed that Roberts had distorted the Court's precedents, "written out of the law" a host of Supreme Court decisions, and disingenuously reversed the course of constitutional law. Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them.
John Roberts and Samuel Alito billed themselves as legal craftsmen who would be guided not by rank ideology, but by a respect for the rule of law. They have now proved otherwise.
CNN senior legal correspondent Jeffery Toobin reported:
Stephen Breyer, you know, who is kind of the Mr. Congeniality of the Court, was so angry, his voice was practically breaking as he read his dissenting opinion. And this isn't really just about whether school boards can consider race. This is about whether affirmative action can exist at all, whether the use of race is permissible.
It was just 2003 when Justice O'Connor wrote her famous opinion in the University of Michigan case saying, yes, race can be considered.... But today's decision may be the beginning of the end of that.
Toobin went on to say that Breyer is "suggesting that it's because of Roberts and Alito. When Stephen Breyer said that -- which is an unusually personal attack -- you could see the chief's justice's jaw muscles starting to vibrate a little. Justice Alito, who's a very kind of low key presence on the Court, sort of turned across the bench and looked at Breyer as he said that."
That's something justices don't say about each other very often. But this is the end of a term where the conservative majority reversed or cut back on a lot of precedents that the court thought were fairly stable. And Breyer was pissed.
And rightly so. As Breyer said: "Rarely in the history of the law have so few undone so much so quickly."

In a separate report, Toobin observed:
Chief Justice John Roberts saying that the students who didn't get -- the white students who didn't get the school of their choice in Louisville and Seattle were equivalent to the black students in Brown v. Board of Education who were denied access to integrated schools in Topeka, Kansas. [Justice] Stephen Breyer responding, "You have got to be kidding me, that the efforts in good faith of these schools in Louisville and Seattle to integrate their schools, to make sure that there's diversity, how dare you compare that to the discrimination of Jim Crow?"
What was all that Repub talk about impeaching activist judges? Perhaps Dems should revisit that idea. Bonus points if the prospect causes Mrs. Alito to pucker and cry indubitably on cue for the camera.

I agree with Corpus Juris' earlier remarks:
We have endured five really, really bad Supreme Court decisions, with the worst coming today. All of them pissing on precedent. So much for stare decisis. Decisions so bad that you are left wanting to ring the necks of Democratic Senators for not filibustering Alito's candidacy...
Yes, indeed.