Settled law...isn't

What some people refer to as "settled law" isn't – it's not "settled," nor is it "law."

According to the Constitution of the United States, Article I, Congress makes the laws.  Period.  Full stop.  Judges don't – at least they aren't supposed to.

Now to the main point.  Recently, Senator Susan Collins (R[INO]) and a must-have vote, in order to confirm President Trump's upcoming pick to replace retiring Justice Kennedy, said this

I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.

Back in my law enforcement days, I remember rookie cops and cop "wannabes," along with more than a few young attorneys trying to appear more knowledgeable than they were, using the term "case law."  That falls into the same category as "settled law" – it isn't.

What these folks refer to as "settled law," or "case law," comes from a judicial concept adopted from common law.  The proper term is "stare decisis," Latin for "stand by, on things decided."  Put another way, we have adopted a legal tradition of deference to judicial precedent.  The United States adopted this concept as we built our judicial system, in order to establish a public expectation of consistency in judicial proceedings.  This is a good concept, but by no means an absolute one.

What does this mean in plain English?  Simple: Generally, in like legal circumstances, we will decide today's decisions and tomorrow's decisions as we decided like cases yesterday until we decide to decide them differently.  And we do that on occasion.

  • Dred Scott, redecided by a war and a constitutional amendment.
  • Plessy v. Ferguson, redecided by Brown v. Board of Education.
  • Korematsu v. United States (Japanese internment), explicitly repudiated in Trump v. Hawaii (immigration).
  • And, from today's headlines, Quill Corp v. North Dakota, redecided just days ago in South Dakota v. Wayfair (internet sales tax).

In short, there are good and proper reasons for deference to judicial precedent.  But we don't need to give it outsized status.  We certainly shouldn't allow RINOs like Senators Collins and Murkowski to derail conservative Supreme Court nominees, especially with specious logic that merely diverts attention from their support of and for the murder of children in the womb.

Mike Ford is a sometime contributor to American Thinker.

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