http://dailykos.com/storyonly/2005/10/30/13406/091Super Stare Decisis Stinkbomb Open Thread
by Armando
Sun Oct 30, 2005 at 10:40:06 AM PDT
The Winguts are saying that Bush has narrowed his choices for the Supreme Court nomination to replace Sandra Day O'Connor to Samuel Alito, the 3rd Circuit appellate judge, and Michael Luttig, a 4th Circuit appellate judge.
Jeffrey Rosen writes about Luttig's "super stare decisis" view of Roe v. Wade:
But social conservatives face a problem: a new theory of "superprecedents" that is gaining currency on the right as well as the left. . . . Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked
whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents - that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn. In response, Judge Roberts embraced the traditional doctrine of "stare decisis" - or, "let the decision stand" - and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.
. . . he idea of superprecedents is more powerful than a simple affirmation of stare decisis. An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.
Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."
What a lovely stink bomb to throw into the middle of the Wingnuts. No litmus tests? We'll see what James Dobson has to say about that.
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