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.
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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.