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June 29, 2010
Stare decisis, sometimes
Can we stop pretending that liberal jurisprudence is anything but warmed over politics in a judicial robe? Yesterday's decision by the Supreme Court in McDonald v. Chicago proves beyond a shadow of a doubt that the left-leaning justices will vote what they believe regardless of what a law's intentions were. Concepts like 'stare decisis' (the legal principle that obliges judges to respect precedents established by prior decisions) that were so important during the confirmation hearings of Justice Roberts, mean nothing to the sitting liberal justices. Each of the left leaning judges voted as if The District of Columbia vs Heller had not decided unequivocally that the right to keep and bear arms was an individual right. Justices Stevens, Breyer, Ginsburg, and Sotomayor ignored stare decisis, the law, and the intentions of the authors of our Constitution to vote against restraints on Government power.
It's instructive to read the dissenting opinions in both the Heller and McDonald cases. In Heller, the contortions that the justices go through to attempt to defend their position is amazing in their duplicity. The dissents' arguments, logic, and linguistic acrobatics are so stunning that they are gently made fun of in the majority's opinion (it's both funny and sad that the logic used by the dissents is that poor). In the McDonald decision the dissenting justices dispense with attempting to argue law and instead argue politics. Justice Breyer talks about the effects of firearms ownership (itself an opinion) and doesn't dabble much in the law except to note that other countries have outlawed firearms ownership. What any of that has to do with The Constitution of the United States Of America is anybody's guess, but it clearly proves that the liberal Justices aren't making decisions based on law, precedent, or the framer's intention.
This leads us to a dangerous place in today's political landscape. Our legal system was designed to help prevent the abuses our founding fathers suffered under at the hands of a monarchy. The Constitution was designed to limit the power of the government, and our judicial system was designed to provide a check and balance on how power by the other branches was wielded. Once that judicial branch stops acting in that capacity, it becomes law-making body. As a law making body its members are not subject to political pressure in the same way that elected officials are and is entirely undemocratic.
This brings us to today's Senate confirmation hearings. The question of the day for Elena Kagan is "Does stare decisis apply equally to Roe v Wade and The District of Columbia vs Heller?" Regardless of her answer, we know from what she has written that Elena Kagen would have voted with the dissenters, ignoring stare decisis, the law, the clear intent of our Constitution and that makes her unfit for the job.