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Liberal columnist Michael Kinsley writes in his Washington Post column yesterday:

These days, the vital importance of respecting past Supreme Court rulings is an urgent talking point for Democratic operatives, liberal talk-show hosts and senators feeling their way toward a reason to oppose Supreme Court nominee Samuel Alito. Olympia Snowe, a liberal Republican from Maine, said Wednesday that Alito's respect for precedents will be "the major question" in her decision on whether to support him.

(more below the fold)

But Kinsley begins his column with the very important point:

In a 1986 case called Bowers v. Hardwick, the Supreme Court ruled that state laws against homosexual sodomy do not violate the Constitution. In a 2003 case called Lawrence v. Texas, the court ruled that, on second thought, anti-sodomy laws do violate the Constitution. Liberal politicians cheered this rare and unexpected admission of error by the court. They did not express any alarm about the danger of overturning precedents.  Plessy v. Ferguson, upholding racial segregation, was a major precedent when the court overturned it and ended formal racial segregation with Brown v. Board of Education in 1954. Liberals did not complain.

Mapp v. Ohio (1961), where the Court declared that illegally seized evidence inadmissible in a trial, overruled a Wolf v. Colorado (1949), where the Court permitted illegally seized evidence to be used in a trial.  Gideon v. Wainright (1963), which guaranteed the accused regardless of ability to pay a constitutional right to an attorney, overruled Betts v. Brady, which 23 years earlier ruled that county governments did not have to provide the accused with an attorney.  The list of overturning (and establishing) precedents to rectify injustices goes on and on.

Even on the right to an abortion, I think many Kossacks here might like Maher v. Roe (1977), which permitted states to deny women public funds to pay for an abortion, overruled.  The same is true of Harris v. McRae (1980), which declared the Hyde amendment constitutional.  Many here might like to revert back to the trimester framework established under Roe v. Wade instead of the "undue burden" standard established under Planned Parenthood v. Casey in 1992.  The list of abortion precedents Kossacks might like to overturn goes on and on.

The point is that maintaining stability in government and predictability in the law isn't always the best course.  Stability and predictability comes with a price.  We do not want justices whose respect for precedent runs so deep that they leave injustices unrectified.  We want the Supreme Court to take an active role in rectifying injustices.  This has historically been the Democratic Party's judicial philosophy.

Below is what I belive the Democratic Party's judicial philosophy -- its credo -- should be:

Democrats believe the Constitution describes our journey of human dignity, and that the greatest part of the Constitution, to quote Justice Thurgood Marshall, "is not its birth, but its life and development."  Democrats believe that this quest for greater human dignity did not stop in 1787 when the Constitution was ratified, or 1868, when the 14th Amendment was adopted, or even today, but that our quest for human dignity is an unending one, and justices must not merely show they will maintain today's standards of human decency, but will expand the protections of human dignity.  An evolving society facing ever-increasing threats to human dignity must expand -- not limit or even maintain, but expand -- its protections of human dignity.  Democrats want someone who will judge today by today's standards and not some past standard.  Democrats want someone who can see injustice, and, limited only by what the Bill of Rights and the 14th Amendment forbid, rectify injustices wherever they exist.

Please feel free to add cases you believe should be overturned, your imput to the Democratic judicial philosophy, any criticisms, and anything else.

Originally posted to jim bow on Sat Nov 19, 2005 at 07:29 AM PST.

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Comment Preferences

  •  Good diary (none)
    I've been getting concern over all the precedent talk. Precedent, is of course, important, but there are times when it is wrong, and the constant harping on "respect for precedent" implies that it is not.

    What really frustrates me is that "respect for precedent" seems to have become Democrats code for Roe v. Wade, just like Bush uses Dred Scott as his code. I find it disturbing that we can't have an honest debate on the subject and are beginning to cloak our intentions in seemingly innocuous words, Republican style.

    I believe a majority of Americans favor abortion rights, correct? Why not just make it an issue?

    The basic division in society isn't liberals vs. conservatives, but those who believe that they should control the love lives of strangers and those who don't.

    by tempest in a d cup on Sat Nov 19, 2005 at 10:39:47 AM PST

    •  Well (none)
      I think Supreme Court nominations are about so much more than abortion rights.  We want justices who can see injustices, and believe the Court should take an active role in rectifying these injustices.  Please reread the credo I laid out in the last blockquote.

      The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

      by jim bow on Sat Nov 19, 2005 at 05:14:42 PM PST

      [ Parent ]

      •  Oh, I absolutely agree with you (none)
        I must have been unclear. What I meant was that I think a lot of Democrats are using "respect for precedent" as code for an approach to Roe v. Wade, and I find that dangerous and disturbing.

        The basic division in society isn't liberals vs. conservatives, but those who believe that they should control the love lives of strangers and those who don't.

        by tempest in a d cup on Sat Nov 19, 2005 at 05:30:16 PM PST

        [ Parent ]

    •  I agree, we should make it an issue (none)
      The radical anti-abortionists will never vote Democratic. But Republican-leaning suburbanites are mostly pro-choice and are willing to vote Democratic (proof is in Virginia), and those are the votes that would take back the House/Senate. We should be strongly promoting the our differences with the Republicans on abortion. And let's do everything possible to prevent Alito from being confirmed.

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