http://www.huffingtonpost.com/geoffrey-r-stone/roberts-alito-and-the-ru_b_54273.htmlJohn Roberts assured the Senate Judiciary Committee that judges must "be bound down by rules and precedents." <snip>
Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a fundamental part of our legal system." This principle, he explained, "limits the power of the judiciary" and "reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, it is "not an inexorable command," but there must be a strong "presumption that courts are going to follow prior precedents."
It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.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.
The tactic, in short, is to purport to respect a precedent while in fact interpreting it into oblivion. Every first-year law student understands the technique. It works like this: "Appellant argues that Smith v. Jones governs the case before us. But Smith v. Jones arose out of an accident that occurred on a Tuesday. The accident in this case occurred on a Thursday. We do not overrule Smith v. Jones, but we limit it to accidents that occurr on Tuesdays." This illustration is, of course, a parody of the technique. But it captures the Roberts/Alito style of judicial craftsmanship.
Right now - I am so sickened by what is happening with these decisions being handed down. I am so disheartened by how little the Senate even pretended to care about the consequences of their vote. And here we are.
I hope the Gang of 14 is proud this week.