Wednesday, June 23, 2010

It Has Not Been Decided

Stare decisis is a Latin term meaning, roughly, it has been decided. It is settled law. In Planned Parenthood v. Casey, the Supreme Court relied upon this doctrine to uphold Roe. At least, that's what they claimed to be doing. What they actually did was use the opportunity to rewrite Roe, to "improve" it. So they did away with the trimester system, and (you see O'Connor's work here) they replaced the bright line test of "strict scrutiny" with the warm oatmeal of "undue burden."

Casey contains many lies, but one of the most obvious is the claim of stare decisis. Is abortion settled law? Has it been decided? Are we all in agreement now? Now, I'm a pro-lifer, so I'm biased, but come on. We have major world religions opposed to abortion. The Republican party, which is one of the two major parties in the U.S.A., puts in its political platform every four years that Roe is bad law and needs to be overruled. Did the Republicans, upon reading Casey, change their mind? They did not.

So it has not been decided. That's a lie. That's a big lie. We're still fighting over abortion, you dummies. You haven't fixed it. Still a problem. Many people are still unhappy.

"It has been decided" is a term that should be used for those cases where we're all pretty much agreed. The government can't racially segregate anymore. I don't know if there's a government anywhere that wants to racially segregate, but if there is one, they can't do it. It's been decided. We’re all in agreement on that one. And it’s just the sort of widespread agreement that should mark any stare decisis case. A state that racially segregates its people would be odd and unusual in the 21st century, right? Why is it unusual? Because it's been decided. We're all in agreement that racial segregation is bad. So if some idiosyncratic state starts imposing racial segregation on its people, they will immediately be smacked down in the name of stare decisis. But of course no state would even try to racially segregate its people. It's outlandish and unthinkable. It's so stare decisis that nobody is fighting that one anymore.

A stare decisis opinion should be unanimous. Why? Because it's been decided. Duh. If you have five Justices who say "it has been decided" and four Justices who say "it has not been decided," what do we know? We know it hasn't been decided. Oh, it's been decided, but it hasn't been decided, decided. One more Justice and we'll flip that puppy over.

Why does the Supreme Court often have some lone dissenter jumping up and down by himself? So those assholes in the majority can't claim that it's been decided. Oh, they'll claim it anyway. That dissenter is just some lone whacko jumping up and down by himself. But the problem with the lone dissenter is that he might convince some future Supreme Court Justice. Or two or three. And before you know it, the rightness of his argument convinces five and it is now decided that what was decided was decided wrong.

Do you actually have to make an argument when it has been decided? No. Why not? Because it's been decided. It's unanimous. We all know what's right now. That case is so over. Now, can anyone say this about Roe v. Wade? Oh, please.

The Supreme Court in Casey relied upon a stare decisis claim--in the face of four dissenters and only one vote needed to overturn their shit--not because it has been decided and we're all happy and singing in unison. They claimed it has been decided so they could avoid arguing about what the Constitution actually says. Cause when it's been decided, you don't have to make any arguments. Why not? Because it's been decided. "We're not going to argue with you, because it's been decided." Oh, yeah. That's a really powerful decision that I have to abide and follow. The ol' 5 to 4 argument. It's been decided! Shut up!

It's kind of like being in a car, and you're lost, and you and your husband are arguing about where you should go. And the driver gets tired of all the arguing and says, "It's been decided." And you're looking at him like he's lost his mind. Cause the argument is not over. We definitely should be going to the right. But he's driving, so you really can't do anything. Unless you want to grab the wheel and crash the car. But inside you're saying to yourself, "Oh, he'll see. We should have gone to the right. It's so obvious. He'll see. Just you wait. One day I'll be driving."

What's really obnoxious is when there are four other people in the car, and they all agree we should be going to the right. And the driver of the car still won't listen. And then on top of this, just to rub it in, he says, "It has been decided." Can you imagine? I would lose my mind. "What do you mean, it's been decided? We're going the wrong way, you moron."

It has not been decided. You know how you know it has not been decided? Because the Republicans are still pissed off about it. And they'll fight and fight and fight. Democrats do the same thing. When right-wingers on the Supreme Court wrote Lochner, what did the Democrats do? They jumped up and down. If you piss off one major party and they stay angry for years and years, your opinion is in trouble. It just is.

It doesn't actually matter if you're right or wrong. Oh, it helps to be right. It's really hard to keep affirming a baby-killing opinion. But if the Republicans were pissed off about birth control or sodomy, and you could confidently say with assurance, "they're wrong," it still wouldn't help you unless the Republicans themselves agree. If they're fighting and you're not, they win. If they're fighting and you're fighting, you'd have to be a moron to say the fight is over. Only when both sides give up the fight, then it has been decided.

An opinion can withstand people who are angry for a year or two. An opinion can withstand an election cycle. But if people are still pissed off, decades later, forget it. It hasn't been decided. It's the opposite of settled. It's a fight. It's a fight and a fight and a fight fight fight.

Every judicial nomination is about Roe, and will continue to be about Roe for the foreseeable future. Every liberal has to swear secret allegiance to it, and every right-winger makes a private vow to destroy it. Our confirmation process has been politicized, if not poisoned. Roe is the elephant in the room. What this means is the opinion is not sitting on a rock of jurisprudence. Why is the fight so harsh and brutal? Why was Bork borked and Thomas vilified? Because Roe is shaky, uncertain, and insecure.

No comments:

Post a Comment