Even as the hearing progress, she could be deceiving the Senate Judiciary committee — and herself for that matter — by secretly knowing that she will use the words of Chief Justice Roberts to do whatever she wants once she has her lifetime appointment. Her only goal right now is to be confirmed.

by Randall Terry

What follows are quotes from three Supreme Court decisions, which explain how Elena Kagan could use “Supreme Court precedent” to abandon “Supreme Court precedent.”

When Ms. Kagan says in effect, “I will give cases (such as Heller and MacDonald — 2nd amendment cases) all the authority they deserve as precedent,” could she be saying she will ignore them — using Supreme Court precedent to do so?

What follows is the simple logic for her possible duplicity.

In 1986, the Supreme Court ruled: “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” (SUPREME COURT OF THE UNITED STATES, 478 U.S. 186, Bowers v. Hardwick, No. 85-140 Argued: March 31, 1986 — Decided: June 30, 1986)

In 2003 — a mere 17 years later — the Supreme Court reversed Bowers v. Hardwick, in Lawrence v. Texas. In Lawrence v. Hardwick, the Majority addressed the issue of “precedent” and “stare decisis” They ruled: “Stare decisis is not an inexorable command.” (SUPREME COURT OF THE UNITED STATES, LAWRENCE et al. v. TEXAS, No. 02 — 102. Argued March 26, 2003 – Decided June 26, 2003)

On January 21, 2010, in Citizens United v. FEC, Chief Justice Roberts gave a lengthy justification for disregarding “stare decisi” (precedent) when the Court struck down the “McCain-Feingold” law in Citizens United v. FEC.

The following words are from Citizens United v. FEC; this reasoning could easily be used by Elena Kagan to use Court precedent to ignore Court precedent. (This might explain why she would not say that the right to keep and bear arms was a fundamental right, but merely a right upheld by the Court in recent rulings. In a future case, she could follow Justice Sotomayor’s lead – and Chief Justice Robert’s reasoning – and use the “precedent” of ignoring precedent, and declare that the 2nd amendment does not apply to individuals.

What follows are the words of Chief Justice Roberts — who wrote for the majority — in Citizens United v. FEC. (The extensive case law cited by Roberts is omitted, but can easily be referenced in the decision.)

At the same time, stare decisis is neither an “inexorable command,”…,nor “a mechanical formula of adherence to the latest decision,”…If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants…As the dissent properly notes, none of us has viewed stare decisis in such absolute terms…In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.”… Its greatest purpose is to serve a constitutional ideal — the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent…

Likewise, if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake…

Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own.

It is easy to follow the internal logic of this decision to see how Elana Kagan may plan to join the Court, and vote to strike down any ruling or law that she deems “undermines the rule of law” as she decides the rule of law should be.

Even as the hearing progress, she could be deceiving the Senate Judiciary committee — and herself for that matter — by secretly knowing that she will use the words of Chief Justice Roberts to do whatever she wants once she has her lifetime appointment. Her only goal right now is to be confirmed.

We must urge the senators on the judiciary committee to specifically ask her how she would use the precedent cited above to ignore and overturn precedent.

View Mr. Terry’s TV show dealing with this topic at 4:30 P.M. on www.CPNLive.com

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