From the President

Wanda Franz, Ph.D.

When Judicial Precedent Subverts the Constitution

Respect for precedent means not only that the justices should follow the specific outcomes of prior cases but also that they must follow their logic. The logic of cases demands that judges second-guess legislative and executive decisions on the most sensitive moral and political issues and that judges decide for themselves on the appropriate means for achieving preferred policies. The simple fact is that constitutional law as set out in the cases now requires judges to legislate from the bench. Nominees to the [Supreme] Court can repeat endlessly that judges should interpret, not make, law. But unless they are willing, once on the Court, to rethink the logic of prior cases, they will have to make law.

This displacement of political decision-making has had deeply harmful consequences for our society….

So [Senator] Specter's questions [at Justice Alioto's nomination hearing] about stare decisis [i.e. following precedent] were not tangential or technical.
--Robert F. Nagel, in The Weekly Standard, 4/17/ 2006

It is fair to say that Senator Specter is in favor of abortion "rights" and that he looks at the Constitution as a malleable "living thing" that "represents the values of a changing society." It is also fair to assume that when it comes to abortion, he--like pro-abortionists in general--expects "progressive" justices to make law and conservative justices to "respect precedent" and question neither the legitimacy nor logic of such judge-made law.

Judges below the level of the Supreme Court are, of course, obliged to follow the precedent of a Supreme Court decision. Some courts, such as the "progressive" 9th Circuit Court of Appeals, venture beyond Supreme Court precedent. This lack of judicial discipline has earned the 9th Circuit the highest reversal rate among appeal courts.

More typically, appeal courts bow (sometimes grudgingly) to the authority of the Supreme Court. Thus in a terse amendment to a previous decision the 4th Circuit Court of Appeals (that originally had gone against a group of abortionists), Judge J. Michael Luttig wrote (8/22/2000), "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey (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. And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart [2000]."
 

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