Saturday, July 07, 2007

Loose Precedents

Professors Mary Ann Glendon and Douglas Kmiec give the Roberts Court "high marks", noting, among other things, its great "respect for precedent." While I am a big fan of Glendon, at least, this is a truly unbelievable statement.
Despite some ideological carping from those who lost cases that depended upon the extension of past decisions, Roberts and Alito have also shown themselves to be strongly respectful of precedent. Advocates this term urged overturning previous abortion decisions, a Warren Court ruling allowing taxpayers to sue in religion cases, and campaign spending limits. The new justices left those precedents in place, often resisting both their unwarranted extension to new facts and the urging of Justices Antonin Scalia and Clarence Thomas to overrule them.

This cannot fairly be dubbed faux deference. Tinker v. Des Moines Independent School District (1969) still meaningfully invites robust discussion of political and social views in school, as Alito and Kennedy strongly reaffirmed in Morse v. Frederick, even though Tinker did not protect advocacy of illegal drug use. Likewise, the allowance in Grutter v. Bollinger (2003) for race as one factor in pursuit of higher-education diversity was reaffirmed, notwithstanding the Court’s rebuff of outright racial balancing.

Okay, first of all, respect for precedent does not just mean refusing to overrule precedent. It also means actually going where precedent tells you to go in a given case. That Tinker and Grutter still have some theoretical application somewhere after Morse and Parents United does not negate the fact that those two rulings were contorted into nearly unrecognizable shapes through Roberts' "creative" efforts not to overrule them. All Roberts has done is recognize that unhelpful precedents can be isolated rather than overruled with much the same effects, and by operating that way he can still maintain his status as a "minimalist" among more credulous observers. Second, it is interesting that Glendon and Kmiec don't make an argument for how the two worst examples of this distinction-without-difference game was "respectful": The Hein case "not overturning" Flast v. Cohen, and Stenberg II "not overturning" Stenberg I. I believe the former is where Scalia did slam his colleagues for "faux restraint," so it might be worthwhile to tell us why that's not the case. In any event, it is difficult to see why taxpayer standing, insofar as it is accorded to legislative acts that violate the Establishment Clause, doesn't apply to executive acts that do the same (saying it applies to neither is at least consistent, as is saying it applies to both--one but not the other is absurdism). And the two Stenberg cases were nearly mirror images of each other. If a state law prohibiting "partial-birth" abortion needs to have a health exception, then a federal law likewise ought to need it.

The article concludes with lovely bromides about how law needs to be objective, and how people rely on it for guidance, and putting aside ideology, etc.. It's articles like these that make me ever more convinced that any result will be seen by its defenders as objective (especially conservative defenders who hang their hat on objectivity so heavily), and that those "constraining" forces like objectivity, precedent, stare decisis, and what have you, are no constraint at all. This is anti-persuasion--after reading this article, I'm further away from these author's positions than where I started.

Via Jonathan Adler

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