Uncommon Sense

May 11, 2022

Judicial Activism Unchecked

In the 1960’s, the real conservatives of the time railed against “judicial activism” which basically meant that courts were legislating from their benches. Well, if that were true, those prior justices were pikers compared to the current Supreme Court of the U.S. (SCOTUS).

There are a number of checks on judicial power, the Congresses ability to legislate, etc., but one of the foundational checks on judicial power is the principle of stare decisis.

Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow legal precedents set by previous decisions. Of course, following this principle, like so many things involving the SCOTUS, is voluntary. (Unlike all lower courts, for example, SCOTUS has no ethics code.)

Just to be complete, a precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. (Source: Wikipedia)

Now, here’s the kicker: if the wording “Roe was egregiously wrong from the start” in the leaked Alito opinion remains intact in the final opinion, it basically creates a precedent that precedent no longer exists. It would effectively kill off the legal doctrine of stare decisis as a check on judicial power. All that would be necessary for the court to take off in any direction it wants is to declare that all of the precedents are flawed.

This is not a scare tactic. The court has been blowing off precedents in droves lately. In the Citizens United v. Federal Election Commission decision, which declared that corporations had the right to donate unlimited amounts of money to political entities, but not candidates or parties, and that money was a form of political speech and so is protected under the First Amendment, the court actually sought out such a case and ignored a great many precedents in ruling on it. Same goes for (Burwell v. Hobby Lobby) which added to the concept that corporations are legally people with the right of free speech, to include that they have religious rights.

Some basic impossibilities are involved here. In the Hobby Lobby decision, the religious beliefs of a corporations owners were decided to be in play. While this may be the case for private corporations, what about pubic corporations? Are not all of the shareholders co-owners of the corporation? Would not any action in this arena therefore require a poll of the shareholders? Have you heard of such a thing?

In Citizen’s United decision, what is this “person” who has these political rights? Is it the owner(s) or just the CEO? Is it the Board of Directors? And, wouldn’t those people also have personal political rights? So, they are creating a class of citizen that isn’t in the “one man, one vote” class. These citizens have multiple votes and multiple channels of free speech. Could not the corporation grant the CEO a “bonus” (for performance, of course, wink, wink, nudge, nudge) which then gets donated to this or that candidate (which the corporation cannot do directly)?

Talk about creating an unnecessary nest of snakes. A fiction created in the 19th Century to facilitate corporations (actually to privilege them) is being turned into an über-citizen creation device. The SCOTUS has been pro-business in the extreme for a long time and we have no reason to believe they will not continue on that path. So, this is by far not the limit of their activism; they are just getting warmed up.

1 Comment »

  1. By discarding precedent they’re opening up a huge can of worms here. This means that EVERYTHING that was litigated in the past is essentially meaningless, and that what is or is not legal can change at the whim of whoever is wearing that stupid black dress judges wear. (you’d think they’d have at least switched to a tasteful black pantsuit, a bit of silver accent at the collar, maybe some tasteful white pumps, but no, they keep showing up on those frumpy dresses… Sigh…) If precedent no longer exists, than they’ve pretty much just destroyed the whole legal system. The court declared you have the right to privacy? Ah, but that was Tuesday! Today is Wednesday and the justice has a queasy tummy so now he decides that no, you don’t have a right…

    Liked by 4 people

    Comment by grouchyfarmer — May 11, 2022 @ 10:41 pm | Reply


RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Create a free website or blog at WordPress.com.

%d bloggers like this: