Mark Levin: If stare decisis is paramount, put monkeys on the Supreme Court

Talk show host and constitutional scholar Mark Levin has been talking a lot this week about the philosophical arguments being made about Supreme Court nominees.  Levin made the point that liberals are insisting that a nominee promise to slavishly follow stare decisis, or to obediently obey past cases that liberals like, such as Roe v. Wade.

But Levin made the point that if Supreme Court justices need only to blindly follow past decisions, we could easily put monkeys on the court instead of people.  Levin points out that some Supreme Court precedents are not ones to be blindly followed:

1. Korematsu v. United States, which upheld the internment of Japanese Americans en masse.

2. Plessy v. Ferguson, which upheld "separate but equal" segregation for blacks.  Levin points out that Plessy was "settled law" for longer than Roe has been.

3. The Dred Scott case, where a slave who was in a free state was returned to his master.

Levin says justices are human and can make mistakes.  That's why picking a justice who will blindly follow precedent is not the way to go.  Instead, Levin says the president should select a nominee who will vow to follow the Constitution.  An originalist who follows the Constitution will then uphold precedent that was decided properly and overrule precedents that weren't.

I remember that in law school, I was repeatedly told that the Constitution is a living, breathing thing that evolves over time, making it sound like a human mutation from an Outer Limits episode gone wrong.  But the problem with making the Constitution "current for the times" or "flexible" is that with this flexibility comes a loss of the original meaning of the document.  And when the document can mean whatever you want it to say at a given time, people's rights can be taken away.

The Constitution as written may be frustrating, and it may not precisely define and balance powers as it should, but it is better to have a Constitution that prevents the government from imposing its will than a Constitution that gives the government unfettered power.  Right now, our government is tremendously powerful, having a say in nearly every aspect of our lives.  We're light-years away from the weak central government of the Articles of Confederation days.

But liberals are results-oriented.  They want a justice who will uphold certain cases without ever referencing the Constitution.  Levin reminded his audience that supposed "moderate" Senator Susan Collins of Maine, who demands fealty to Roeactually voted to support late-term abortions, where the baby's head is drilled and then its brains are sucked out, just like the horror scene from Starship Troopers where the arachnids do it to people.

Levin wants a constitutionalist.  Both he and Ted Cruz have spoken of their doubts about leading candidate Brett Kavanaugh, saying his decisions suggest a timidity in overturning liberal precedent and that Kavanaugh has troubling Bush and Karl Rove connections.
What interests me is that all the liberal attacks have been directed against another candidate, Amy Coney Barrett.  Senator Schumer says she's against birth control, abortion, and all that liberal red-meat good stuff, in a tweet-storm a few days ago.  But, curiously, Senator Schumer has not a word to say about the other leading candidate, Brett Kavanaugh, which suggests he is Schumer's secret favorite...and therefore no favorite of mine.

It's hard to know what a justice will do on the court, and justices tend to change over time.  Maybe it's a good idea to do as Poland does and put an "expiration date" on justices, like bad milk.

 Ed Straker is the senior writer at

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